EXPLANATORY STATEMENT

Disability Services (Administration of Part II of the Act) Guidelines 2002

Summary

These Guidelines, made under subsection 5(1) of the Disability Services Act 1986 (the Act), are relevant to the administration of Part II of the Act that deals with funding of employment services for persons with disabilities.

The main purpose of this instrument is to formulate guidelines on matters relevant to the administration of Part II of the Act consequential on the introduction by the Disability Services Amendment (Improved Quality Assurance) Act 2002 (the Quality Assurance Act) of a new quality assurance system in relation to the provision of employment services.

The current guidelines for the administration of Part II of the Act, the Guidelines for the Administration of Part II of the Disability Services Act (current Guidelines), are revoked.

These Guidelines preserve the requirements existing in the current Guidelines in relation to eligible services as the new quality assurance system does not apply to the funding of those services. Where the changes brought on by the Quality Assurance Act do not affect the existing requirements relating to employment services, these requirements were also preserved. Minor drafting changes, in line with the plain English approach to drafting, were made to express the preserved requirements.

Specifically, new guidelines are provided for employment services in relation to

-                      the requirements concerning an application for a grant under the Act;

-                      the determination by the Minister of the day by which a certificate of compliance is to be obtained;

-                      the determination by the Minister of the disability employment standards and key performance indicators;

-                      the requirement that the service provider holds a current certificate of compliance; and

-                      the availability to the public of certain documents.

These Guidelines commence as provided under section 5 of the Act.

Background

The Quality Assurance Act introduced, from 1 July 2002, a new industry-based quality assurance system in relation to the provision of employment services and rehabilitation programs. The new quality assurance system is based on the certification, by accredited for that purpose certification bodies, of the services the provision of which complies with the relevant disability standards and key performance indicators.

The new system links the funding under the Act to the certification. After a transitional period ending in December 2004, only those existing employment services that fully meet the disability employment standards will be funded under the Act. During the transitional period, one of the condition of funding of existing employment services is that they notify the Minister of their intention to obtain a certificate of compliance with the standards by a particular day determined by the Minister, not later than 31 December 2004. New services will have 12 months to obtain the certificate of compliance with the disability employment standards.

Explanation of the provisions

Part 1 Preliminary

Name of Guidelines

Section 1 of these Guidelines states the name of these Guidelines.

Note 1 clarifies that these Guidelines do not apply to the administration of any State or Territory Disability Services Act.

Note 2 directs the reader’s attention to the Disability Services (Rehabilitation Programs) Guidelines 2002 for matters relating to the administration of Part III of the Act.

Commencement

Section 2 of these Guidelines states that these Guidelines commence as provided under section 5 of the Act (the effect of section 5 of the Act is that these Guidelines do not commence until after the end of the disallowance period or until after both Houses of the Parliament have approved amendments (if any) to the Guidelines, whichever date is later).

Revocation

Section 3 of these Guidelines revokes the current Guidelines, that is, the Guidelines for the Administration of Part II of the Disability Services Act, formulated on 5 November 1992.

Purpose of these Guidelines

Section 4 of these Guidelines specifies the purpose of these Guidelines. Section 4 replicates the existing provision of the current Guidelines with minor stylistic changes.

The purpose of the Guidelines are:

-                      to promote fair, open, consistent and accountable-decision making;

-                      to inform the community about the decision making-processes and factors to be considered in making decisions under the Act;

-                      to assist interested parties in applications for grants;

-                      to promote and encourage the provision of services in areas and communities of greatest need

-                      to facilitate the development of services for people most in need;

-                      and to promote the efficient and effective administration of Part II of the Act.

Subsection 4(2) specifies further that these Guidelines provide direction for administering the Act with due regard to limited resources available for services and programs under the Act and the need to consider equity and merit in the allocation of those resources.

Interpretation

Subsection 5(1) of these Guidelines defines terms used in the Guidelines.

Of those terms, the following are used frequently in these Guidelines:

“Act” means the Disability Services Act 1986;

“organisation” means a State or an eligible organisation (“eligible organisation” denotes an organisation that may apply and receive a grant under the Act, and it is define further in section 7 of the Act);

“service provider” means an organisation receiving a grant of financial assistance, under Part II of the Act, to provide a service to persons in the target group (“target group” is defined by reference to the meaning given to this term by subsection 8(1) of the Act).

A note at the end of section 5 provides that the expressions used in this Guidelines and in the Act have the same meaning as in the Act unless contrary intention appears.

The following expression defined in the Act are frequently used in these Guidelines:

“disability employment standards” are defined in section 7 of the Act as the standards determined by the Minister under paragraph 5A(1)(b) in relation to the provision of employment services;

“eligible service” is defined in section 7 of the Act by reference to specific services;

“eligibility standards” are defined in section 7 of the Act as standards determined by the Minister under paragraph 5A(1)(a) (the existing determination of eligibility services continues to be in force after 1 July 2002);

“employment service” is defined in section 7 by reference to specific services;

“key performance indicators” are defined in section 6A of the Act as the indicators approved by the Minister under subsection 5A(2)

”transitional grant” is defined in section 7 of the Act as a grant of financial assistance approved under Subdivision A of Division 2A of Part II of the Act.

Part 2 – Approval of additional classes of services.

Consultation before approving additional class of services

Section 7 of the Act specifies classes of eligible services and classes of employment services. Sections 9 and 9A of the Act provide the Minister with the discretion to approve an additional class of eligible and employment services.

Section 6 of these Guidelines requires the Minister to ensure that the approval of the proposed new class is consulted with an adequate number of people with a disability, their families, advocates, service providers and interested others before the Minister approves that class. The purpose of the consultation is to determine the extent to which the approval of proposed class will be consistent with the objects set out in section 3 of the Act and the principles and objectives set out in section 5 of the Act, and the extent to which the new services offered in that class will meet the needs of people with a disability.

The requirement of section 6 of these Guidelines mirrors the existing requirement in the current Guidelines relating to the approval of new classes of services.

Consideration before approving an additional class of services

Section 7 of these Guidelines requires the Minister to consider the following factors before the approval of a new class of eligible or employment services:

-                      the results of the consultation conducted as required under section 6 of these Guidelines;

-                      whether the proposed class will be responsive enough to the needs of a wide range of people in the target group;

-                      whether the services in the proposed class will be cost- effective;

-                      whether any provisions of the Commonwealth State Territory Disability Agreement applicable to the approval of new classes have been complied with.

“Commonwealth State Territory Disability Agreement” is defined in section 5 of these Guidelines as the agreement, between the Commonwealth on one part and the States and Territories on the other part, concerning the provision and funding of a range of services for people with a disability.

Section 7 is not intended to preclude a class of services from including individual services that would deliver services in the way appropriate only for people with particular functional support need.

The requirement of section 7 of these Guidelines mirrors the existing requirement in the current Guidelines relating to the approval of new classes of services.

When the Minister approves an additional class of service

Section 8 of these Guidelines provide that when the Minister approves an additional class of eligible services or employment services, the Minister must set out a definition or description of the class, consider whether the existing standards and key performance indicators (if relevant) are appropriate for the new class, and if they are not, determine standards that are appropriate and approve appropriate key performance indicators.

Part 3 Matters relevant to making grants for new services

Division 1

Division 1 contains preliminary matters.

Grants in relation to which this Part applies

Section 9 of these Guidelines states that this Part (Part 3) applies in relation to grants for new services.

A note directs the reader to the definition of “grant for a new service” in subsections 5(2) and (3).

“Grant for a new service” refers to:

(a) a grant under section 10 of the Act (grant for an eligible service), 12AB (a transitional grant for an employment service that has been funded under the Act for a financial year 2001-2002) or 12AD (other than transitional grant for an employment service) for the service in respect of which, at the time the grant is approved, funding under the Act is being provided but the grant represents a real increase in the level of funding and will enable an increased level of people to be supported by the service;

(b) a grant under section 10 of the Act (grant for an eligible service) or 12AD (other than transitional grant for an employment service) for the service in respect of which, at the time the grant is approved, funding under the Act is not being provided.

For the purposes of this section, subsection 5(3) provides that funding “is being provided” means that a previous grant was approved for the service, and was not terminated, in respect of the financial year prior to the financial year for which the grant is sought. Therefore, a grant (a new grant) that follows a previous grant that is still being paid at the time of the approval of the new grant, or has been paid, or the payment of which was suspended, would be a grant for a new service to which the Part 3 guidelines apply if the new grant represents a real increase in the level of funding.

If funding under the Act is not being provided to a service under the Act at the time of the approval of the grant, but the service is being funded under another Commonwealth, State or Territory program and is being transferred, in terms of funding, from such a program to the funding under section 10 or 12AD of the Act, the grant is not “a grant for a new service” (subsection 5(2) of these Guidelines refers). A grant in respect of a transferred service is therefore not subject to the Part 3 guidelines (it is subject to the guidelines in Part 4 of these Guidelines).

Section 5 of these Guidelines defines grants for new services in the way consistent with the definition in the current Guidelines to ensure that the guidelines currently in force in relation to applications for grants for new services are not being changed beyond what it is necessary as a result of the introduction of the new quality assurance system.

Needs-based planning approach for making grants for new services.

Section 10 of these Guidelines specifies that the guidelines included in Part 3 of this instrument provide for a needs-based planning approach to making grants for new services, that will enable those services to be developed and funded in the areas and communities where they are most needed to assist people with a disability in achieving such positive outcomes as increased independence, employment opportunities and integration in the community.

Section 10 replicates the requirement of the current Guidelines.

Division 2

Division 2 deals with funding priorities.

Minister must establish funding priorities

Section 11 of these Guidelines requires the Minister to approve and publicly make known, at least once every 3 years, funding priorities in each State for the making of grants for new services.

The funding priorities may include one or more of the following services:

-                      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);

-                      services for specified geographic regions or localities;

-                      specified classes of services;

- services that have specified characteristics or meet specified criteria.

Section 11 replicates the requirement of the current Guidelines.

Process for determining priorities for making grants for new services

Section 12 of these Guidelines requires the Minister to adhere to the following process before approving the funding priorities for a particular State.  The Minister must:

-                      ensure that an adequate number of people with a disability, their families and advocates, service providers and interested others are consulted to provide the Minister with an indication of the appropriate funding priorities in that State for the making of grants for new services;

-                      consider the results of the consultation;

-                      consider the statistical data on the existing supply of, and need for, disability services;

- consider the results of any joint planning processes conducted in accordance with the State and Commonwealth bilateral agreement (if any) and the Commonwealth State Territory Disability Agreement.

Section 12 replicates the requirement of the current Guidelines.

Division 3

Division 3 contains guidelines on announcing available money by the Minister.

Moneys available for making grants for new services

Section 13 of these Guidelines requires the Minister to publicly announce the total funds available to each State for the making of grants for new services after the Parliament has appropriated moneys for the making of grants under Part II of the Act  The Minister may specify that some or all of the funds are available only for the making of grants for one or more classes of services.

Section 13 replicates the requirement of the current Guidelines.

Division 4

Division 4 provides guidelines relevant to applications for grants for new services.

Applications and closing dates for applications

Section 14 of these Guidelines requires the officers of the Department to seek applications for grants for new services from a particular State if funds were made available in respect of that State.  For that purpose, they must made known the amount of money available for the making of grants, the approved funding priorities (if any), the selection criteria that will be used to assess applicants and closing dates for lodging applications.

While the selection criteria will include the requirements of the Act for making a particular grant under section 10, 12AB or 12 AD, the selection criteria may also include the following criteria:

-                      the extent to which making a grant would further the objects of the Act and the principles and objectives formulated under the Act;

-                      the extent of benefit for people with a disability who would use the service, including the outcomes to be achieved for people with a disability and how closely these outcomes match the needs of people who would use the service;

-                      whether the service can reasonably be expected to be financially viable within expected income;

- whether the service can reasonably be expected to deliver cost effective outcomes for people with a disability.

“Officer of the Department” is defined in section 5 of these Guidelines as an APS employee in the Department responsible for performing functions under these Guidelines.

Section 14 replicates the requirements of the current Guidelines.

Officers of the Department may encourage applications

Section 15 of these Guidelines provides that officers of the Department may actively encourage organisations to provide services that would fall within the funding priorities approved by the Minister.

“Officer of the Department” is defined in section 5 of these Guidelines as an APS employee in the Department responsible for performing functions under these Guidelines.

Section 15 replicates the requirements of the current Guidelines.

Applications for grants for new services to be in writing

Section 16 of these Guidelines requires that an applicant wishing to receive a grant for a new service applies in writing to the Department.

Section 16 replicates the requirements of the current Guidelines.

Plans to be provided for certain applications

Section 17 requires that plans for meeting standards (for eligible services) and plans for obtaining a certificate of compliance (for employment services) be provided in certain situations when applying for a grant.

Financial assistance for eligible services

Under subparagraph 10 (3) (b) (i) of the Act, the Minister must not approve the making of a grant unless the applicant can reasonably be expected to 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.

To enable the Minister to determine such a day, subsection 17(1) of these Guidelines requires an applicant for a section 10 grant in respect of an eligible service to provide a sound and practical plan for enabling the applicant to meet, within a reasonable time-frame, the eligibility standards in respect of the provision of the service. The plan must specify the steps to be taken to enable the applicant to meet the standards, the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and the target days for completing the steps.

Note 1 provides legislative background for this requirement.

Note 2 explains that in the situation where a plan is required as provided by this section, the Minister cannot properly make a determination under subsection 10(4A) of the Act unless the required plan is provided.  As a result, under subparagraph 10(3)(b)(i) of the Act, if the Minister has not made the determination, the Minister cannot approve the making of a grant.

Subsection 17(1) replicates the requirements of the current Guidelines.

Transitional financial assistance for employment services

The Minister cannot approve a transitional grant for an employment service under section 12AB of the Act unless the Minister makes a determination of the day by which the applicant must obtain a certificate of compliance in respect of service for which a grant is sought (subparagraph 12AB(2)(b)(I) of the Act refers).

To enable the Minister to make such a determination, subsection 17(2) of these Guidelines requires an applicant for a section 12AB grant to provide a sound and practical plan for obtaining, within a reasonable time-frame but not later than 31 December 2004, a certificate of compliance.  The plan must specify the progress made so far for obtaining the certificate, the steps to be taken to enable the applicant to obtain the certificate, the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and the target days for completing the steps, including the target day for obtaining the certificate.

A plan is not required if the applicant is already receiving a grant under section 12AB in respect of the same service and is applying for a new grant that is subject to the Part 3 guidelines.  This is because the applicant would have already provided the plan in relation to the first grant under section 12AB, the Minister would have determined the day for obtaining the certificate, and that day (as it was determined or as varied) would, as provided by subparagraph 21(1)(b) (i) of these Guidelines, be determined by the Minister to be the day for the purposes of the new grant.

Financial assistance for employment services (other than transitional grant)

Under subparagraph 12AD(2)(b)(ii) of the Act, the Minister must not approve the making of a grant (other than transitional grant) in respect of an employment service unless applicant 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 1 at the end of subsection 17(3) of these Guidelines gives that legislative background).  This condition applies only to the first approval of a grant under this section (for a subsequent approval to be made, the applicant needs to hold a certificate of compliance in respect of the service for which the grant is sought – paragraph 12AD(3)(b) of the Act refers).

To enable the Minister to determine the day for obtaining the certificate, subsection 17(3) of these Guidelines require the applicant for the first approval of a grant under section 12AD to provide a sound and practical plan for obtaining, within a reasonable time-frame, a certificate of compliance in respect of the service, that states the progress (if any) made for obtaining the certificate, specifies the steps to be taken for obtaining the certificate, specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and indicates the target days for completing the steps (including the target day by which the certificate will be obtained).

Note 2 at the end of subsection 17(4) of these Guidelines explains that in the situation where a plan is required as provided by this section, the Minister cannot properly make a determination under subsection 12AB (3) or 12AD (4) of the Act unless the required plan is provided.  As a result, under subparagraph 12AB (2) (b) (ii) or 12AD (2) (b) (ii) of the Act, if the Minister has not made the determination, the Minister cannot approve the making of a grant.

Giving notice of intention to obtain certificate of compliance

Under subparagraphs 12AB (2) (b) (ii) of the Act relating to approval of a transitional grant for an employment service, and 12AD (2) (b) (ii) relating to approval of other than transitional grant for an employment service, the Minister must not approve the making of a grant unless the notice of intention to obtain a certificate of compliance by the day determined by the Minister has been given (a note at the end of subsection 18(1) sets out this legislative background).

Subsection 18(1) of these Guidelines provide that the notice of intention to obtain a certificate of compliance must be given to the Department in a form approved by the Secretary for the purpose of this paragraph.

Subsection 18(2) provides that, in the situation where an applicant for a grant under section 12AB (transitional grant) has given, in relation to a previous application for a grant, a notice of intention to obtain a certificate by the day determined by the Minister, and the day determined by the Minister for the purposes of the new application is the same as the previously determined day, the applicant is taken to have given notice for the purpose of the new application.  Consequently, an applicant for a transitional grant will be required to provide the notice of intention to obtain a certificate of compliance only once.

An applicant for a grant under section 12AD grant (other than transitional grant) will be required to give a notice of intention to obtain a certificate only once. An application for a subsequent grant under section 12AD cannot be successfully made if the applicant is not holding a current certificate of compliance with the disability employment standards (the subsequent grant under this section cannot be approved on the basis of a notice of intention to obtain a certificate).

Acknowledgment of applications for grants for new services

Section 19 of these Guidelines require that officer of the Department acknowledge the receipt of the application, in writing, within 21 days of receiving an application for a grant for a new service.  This section also require to advise the applicant when a decision concerning the application is expected to be made or, if the funding being sought cannot be provided under the Act, to advise so and explain why it cannot be provided.

Section 19 replicates the requirements of the current Guidelines.

Assessing applications for grants for new services

Section 20 of these Guidelines requires that an application for a grant for a new service be considered against the available moneys for making grants for new services, having regard to  the extent to which the application would address 1 or more of the funding priorities approved by the Minister under section 11 and the extent to which the application meets the selection criteria made known as required under paragraph 14 (1) (c) of these Guidelines.

Section 20 replicates the requirements of the current Guidelines.

Determining and varying the day by which an organisation must obtain certificate of compliance

Transitional grant – applicant is not receiving a grant

A transitional grant under section 12AB of the Act cannot be approved unless the Minister makes a determination of the day by which an applicant is to obtain a certificate of compliance with the disability services standards (subparagraph 12AB(2)(b)(i) refers).

The authority for the Minister to make a determination of such a day, and to vary the day, is contained in subsection 12AB(3) of the Act.

Section 17(2) of these Guidelines require the applicant who is not already receiving a grant under section 12AB of the Act to provide a plan for obtaining the certificate.  Under section 25 of these Guidelines, the applicant who is receiving a grant under section 12AB and in respect of whom a determination of the day has already been made would have to provide a new plan if the variation of the day was sought by the applicant.

Paragraph 21(1)(a) and subsection 21(2) of these Guidelines provide that in making the determination of the day for obtaining a certificate of compliance, or in varying the determination, the Minister must take into account information provided by an applicant in the plan, that is, the progress made by the applicant for obtaining the certificate, the steps to be taken by the organisation for obtaining the certificate and 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.

Transitional grant – applicant is receiving a grant

In determining the day in respect of an applicant who is receiving a grant under section 12AB of the Act (and who therefore is not required to provide a plan in relation to the new application for a grant under section 12AB), paragraph 21(1)(b) of these Guidelines requires the Minister to specify the day previously determined, or varied, to be the day for the purposes of the new grant.

Notes at the end of subsections 21(1) and (2) draw the reader’s attention to subsection 12AB(3) of the Act that requires the day specified by the Minister not to be later than 31 December 2004.

Other than transitional grant

Section 17(3) of these Guidelines require the applicant who is not already receiving a grant under section 12AD of the Act to provide a plan for obtaining the certificate. Under section 25 of these Guidelines, the applicant who is receiving a grant under section 12AD and in respect of whom a determination of the day has already been made would have to provide a new plan if the variation of the day was sought by the applicant.

Subsection 21(3) of these Guidelines provide that in making the determination of the day for obtaining a certificate of compliance, or in varying the determination, the Minister must take into account information provided by an applicant in the plan, that is, the progress made by the applicant for obtaining the certificate, the steps to be taken by the organisation for obtaining the certificate and 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.

A note at the end of subsections 21(3) draw the reader’s attention to subsection 12AD(4) of the Act that requires the day specified by the Minister not to be later than 12 months after the day on which the approval of the grant is made.

Subsection 21(4) of these Guidelines provides that if the Minister proposes to make or vary a determination of the day that differs from the target day specified by the applicant in the plan, the applicant has to be notified of the proposed day and be invited to make comments for the Minister consideration before the determination or variation.

Certificate of compliance

Subsection 12AB(4) of the Act provides that one of the conditions of a grant under this section (a transitional grant) in relation to an employment service is that the service provider meets the applicable standards (the standards that the provider had to meet in relation to the grant for the 2001-2002 financial year) at all times before the day on which the service provider receives a certificate of compliance in respect of the service.  Once the certificate is obtained, the condition of that grant is that the service provider holds a current certificate of compliance.

Subsection 12AD(5) of the Act provides that a condition of a grant under this section (that is, other than a transitional grant) in relation to an employment service is that the service provider holds a current certificate of compliance in respect of the service after the day determined for this purpose by the Minister or after the provider receives the certificate of compliance, whichever comes earlier.

“Current certificate of compliance” is defined in section 6A of the Act as a certificate of compliance that is in force.  “Certificate of compliance” relating to the provision of rehabilitation programs is given meaning in section 6E of the Act.  Section 6E provides for the giving of certificate of compliance, by an accredited certification body, to a person providing rehabilitation programs if the body is satisfied that the provision of the programs complies with the rehabilitation programs standards.  If appropriate, the certification body is required under subsection 6E(1) to give a certificate of compliance to the person, and, under subsection 6E(3), to notify the Secretary of the giving of the certificate.  In case of the revocation of the certificate, the certification body is required under subsection 6E(3) to notify the person and the Secretary about the revocation.

Section 22 of these Guidelines provides that, for the purpose of section 12AB and 12AD of the Act, the service provider will be taken to have received a certificate of compliance if the accredited certification body notified the Secretary of the giving of the certificate to the provider, and will be taken to be holding a current certificate if the accredited certification body notified the Secretary of the giving of the certificate and has not notified the revocation of the certificate.  This guideline is intended to simplify the administration of the approval process as it will alleviate the need to provide any other proof of the holding of the certificate by the service provider.

Approving applications for grants for new services

Section 23 of these Guidelines states that the Minister may approve the making of a grant that for a higher or lower amount than that requested in the application and may make a grant for provision of the service to a larger or smaller number of people than that proposed in the application.

Before the Minister does so, the applicant must be told of the proposed decision and be invited to make comment for consideration by the Minister.

Section 23 replicates the requirements of the current Guidelines.

Notifying applicants of funding decisions

Section 24 of these Guidelines provide a 28-day time limit for making a decision concerning an application for a grant for a new service.  Within that time, a written notice must be to the applicant specifying that the making of a grant has been approved, or, that the application was unsuccessful, and why it was unsuccessful.  If the grant has been approved, the notice must state what the conditions of the grant are.

Subsection 24(2) of these Guidelines provides that if an unsuccessful applicant makes a written request to the Department that the application be considered for a future funding decision in relation to the same, or a later, financial year, the application is taken to be a new application for the purpose of the future funding decision.

Section 24 replicates the requirements of the current Guidelines.

Application for varying the day determined by the Minister

If an organisation is receiving a grant under section 12AB or 12AD of the Act in respect of which the Minister made a determination specifying the day by which the organisation is to obtain a certificate of compliance for the service for which the grant is made, and the organisation is unable to obtain the certificate of compliance by the day determined by the Minister, the organisation would breach the conditions of the grant.

If the organisation in that situation wishes to receive any payment of the grant on or after the day determined by the Minister, section 25 of these Guidelines provides that the organisation must apply in writing to the Department for variation of the day determined by the Minister.  The application must contain the reasons for not being able to obtain the certificate by the determined day, provide a sound and practical plan for obtaining the certificate that states the progress made for obtaining the certificate, specify the steps to be taken for obtaining the certificate, specify the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps, indicate the target days for completing the steps (including the new target day by which the certificate will be obtained).

A note at the end of section 25 of these Guidelines clarifies that while the application need not be made before the day determined by the Minister, if an application for varying the day has not been approved on or before the day, the organisation will be in breach of the condition of the grant under  paragraph 12AB (4) (b) or 12AD (5) (b) of the Act.  For actions that may be taken as a result of a failure to comply with the conditions, the note refers the reader to Division 3B of Part II of the Act.

Part 4 Matters relevant to making certain grants other than grants for new services

Grants in relation to which this Part applies

Section 26 of these Guidelines specifies that the guidelines in this part (Part 4) apply to grants other than grants for new services (to which the Part 3 guidelines apply), grants in continuation and renewals of existing grants and grants for emergence assistance.

A note in this section refers to the meaning of the “grant for a new services” given by subsections 5(2) and (3) as explained in the context of section 9 of these Guidelines.

In particular, the guidelines in this Part apply to grants under sections 10 (for eligible services) and 12AD (other than transitional grants for employment services) made first time to services transferred, in terms of funding, from another Commonwealth, State or Territory program to the funding under the Act (such grants are specifically excluded from the operation of the Part 3 guidelines).

Applications for grants to be in writing

Section 27 of these Guidelines requires the applicant for a grant for an employment service relevant to this Part to apply in writing to the Department.

Plans to be provided for certain applications

Section 28 requires that plans for obtaining a certificate of compliance to be provided in certain situations when applying for a grant for an employment service.

Under subparagraph 12AD (2) (b) (ii) of the Act, the Minister must not approve the making of a grant (other than transitional grant) in respect of an employment service unless applicant 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 1 at the end of section 28 of these Guidelines gives that legislative background). This condition applies only to the first approval of a grant under this section (for a subsequent approval to be made, the applicant needs to hold a certificate of compliance in respect of the service for which the grant is sought – paragraph 12AD(3)(b) of the Act refers).

To enable the Minister to determine the day for obtaining the certificate, section 28 of these Guidelines require the applicant for the first approval of a grant under section 12AD to provide a sound and practical plan for obtaining, within a reasonable time-frame, a certificate of compliance in respect of the service, that states the progress (if any) made for obtaining the certificate, specifies the steps to be taken for obtaining the certificate, specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and indicates the target days for completing the steps (including the target day by which the certificate will be obtained).

Note 2 at the end of section 28 of these Guidelines explains that in the situation where a plan is required as provided by this section, the Minister cannot properly make a determination under subsection 12AD (4) of the Act unless the required plan is provided.  As a result, under 12AD (2) (b) (ii) of the Act, if the Minister has not made the determination, the Minister cannot approve the making of a grant.

Giving notice of intention to obtain certificate of compliance

Under subparagraph 12AD (2) (b) (ii) of the Act relating to approval of other than transitional grant for an employment service, the Minister must not approve the making of a grant unless the notice of intention to obtain a certificate of compliance by the day determined by the Minister has been given (a note at the end of section 29 sets out this legislative background).

Section 29 of these Guidelines provide that the notice of intention to obtain a certificate of compliance must be given to the Department in a form approved by the Secretary for the purpose of this paragraph.

An applicant for a grant under section 12AD grant will be required to give a notice of intention to obtain a certificate only once. An application for a subsequent grant under section 12AD cannot be successfully made if the applicant is not holding a current certificate of compliance with the disability employment standards (the subsequent grant under this section cannot be approved on the basis of a notice of intention to obtain a certificate).

Acknowledgment of applications for grants for new services

Section 30 of these Guidelines require that officer of the Department acknowledge the receipt of the application, in writing, within 21 days of receiving an application for a grant for a new service.  This section also require to advise the applicant when a decision concerning the application is expected to be made or, if the funding being sought cannot be provided under the Act, to advise so and explain why it cannot be provided.

Section 30 replicates the requirements of the current Guidelines.

Assessing applications for grants for new services

Section 31 of these Guidelines requires that an application for a grant for a new service be considered against the available moneys for making grants for new services, having regard to  the extent to which the application would address one or more of the funding priorities approved by the Minister under section 11 and the extent to which the application meets the selection criteria made known as required under paragraph 14 (1) (c) of these Guidelines.

Section 31 replicates the requirements of the current Guidelines.

Determining and varying a day by which an organisation must obtain certificate of compliance

Section 28 of these Guidelines require the applicant who is not already receiving a grant under section 12AD of the Act to provide a plan for obtaining the certificate. Under section 36 of these Guidelines, the applicant who is receiving a grant under section 12AD and in respect of whom a determination of the day has already been made would have to provide a new plan if the variation of the day was sought by the applicant.

Subsection 32(1) of these Guidelines provide that in making the determination of the day for obtaining a certificate of compliance, or in varying the determination, the Minister must take into account information provided by an applicant in the plan, that is, the progress made by the applicant for obtaining the certificate, the steps to be taken by the organisation for obtaining the certificate and 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.

A note at the end of subsections 32(1) draw the reader’s attention to subsection 12AD(4) of the Act that requires the day specified by the Minister not to be later than 12 months after the day on which the approval of the grant is made.

Subsection 32(2) of these Guidelines provides that if the Minister proposes to make or vary a determination of the day that differs from the target day specified by the applicant in the plan, the applicant has to be notified of the proposed day and be invited to make comments for the Minister consideration before the determination or variation.

Certificates of compliance

Subsection 12AD(5) of the Act provides that a condition of a grant under this section (that is, other than a transitional grant) in relation to an employment service is that the service provider holds a current certificate of compliance in respect of the service at all times after the day determined for this purpose by the Minister or after the provider receives the certificate of compliance, whichever comes earlier.

Section 33 of these Guidelines provides that the service provider will be taken to have received a certificate of compliance if the accredited certification body notified the Secretary of the giving of the certificate to the provider, and will be taken to be holding a current certificate if the accredited certification body notified the Secretary of the giving of the certificate and has not notified the revocation of the certificate.  This guideline is intended to simplify the administration of the approval process as it will alleviate the need to provide any other proof of the holding of the certificate by the service provider.

Approving applications for grants

Section 34 of these Guidelines states that the Minister may approve the making of a grant that for a higher or lower amount than that requested in the application.

However, before the Minister does so, the applicant must be told of the proposed decision and be invited to make comment for consideration by the Minister.

Section 34 replicates the requirements of the current Guidelines.

Notifying applicants of funding decisions

Subsection 35(1) of these Guidelines provide a 28-day time limit for making a decision concerning an application for a grant for a new service.  Within that time, a written notice must be to the applicant specifying that the making of a grant has been approved, or, that the application was unsuccessful, and why it was unsuccessful.  If the grant has been approved, the notice must state what the conditions of the grant are.

Subsection 35(2) of these Guidelines provides that if an unsuccessful applicant makes a written request to the Department that the application be considered for a future funding decision in relation to the same, or a later, financial year, the application is taken to be a new application for the purpose of the future funding decision.

Section 35 replicates the requirements of the current Guidelines.

Application for varying the day determined by the Minister

If an organisation is receiving a grant under section 12AD of the Act in respect of which the Minister made a determination specifying the day by which the organisation is to obtain a certificate of compliance for the service for which the grant is made, and the organisation is unable to obtain the certificate of compliance by the day determined by the Minister, the organisation would breach the conditions of the grant.

If the organisation in that situation wishes to receive any payment of the grant on or after the day determined by the Minister, section 36 of these Guidelines provides that the organisation must apply in writing to the Department for variation of the day determined by the Minister.  The application must contain the reasons for not being able to obtain the certificate by the determined day, provide a sound and practical plan for obtaining the certificate that states the progress made for obtaining the certificate, specify the steps to be taken for obtaining the certificate, specify the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps, indicate the target days for completing the steps (including the new target day by which the certificate will be obtained).

A note at the end of section 36 of these Guidelines clarifies that while the application need not be made before the day determined by the Minister, if an application for varying the day has not been approved on or before the day, the organisation will be in breach of the condition of the grant under  paragraph 12AD (5) (b) of the Act.  For actions that may be taken as a result of a failure to comply with the conditions, the note refers the reader to Division 3B of Part II of the Act.

Part 5  Development of standards, key performance indicators, performance monitoring processes and processes for applying sanctions

Determining standards, key performance indicators and processes

Section 37 of these Guidelines imposes the consultation requirement on the Minister in relation to the following Minister’s functions:

-                      determination of the eligibility standards and disability employment standards to be observed in the provision of employment services under Part II of the Act (paragraph 5A(1)(a) and (b) of the Act refers);

-                      approval of key performance indicators to be applied in assessing whether the employment standards have been observed (subsection 5A(2) of the Act refers);

-                      making orders under section 14F of the Act (the orders relate to the operation of the Disability Standards Review Panel, the procedures to be followed prior to the Panel conducting review of a service’s performance, and to the requirements that need to be followed before the Minister makes a declaration of a service’s failure to meet standards);

-                      approving a process for monitoring, against the standards that apply to eligible services and to employment services receiving transitional grants, the performance of those services (under section 12AB of the Act, employment services receiving transitional grants are required to meet the standards that were applicable to them for the purpose of a grant relating to the financial year 2001-2002).

Section 37 of these Guidelines establishes the requirement for the Minister to consult with a range of stakeholders to establish their  broad view before the Minister determines the standards, approves key performance indicators for the standards, makes an order under section 14F of the Act or approves a process for monitoring the performance of an eligible service or the relevant employment service. The Minister must ensure that State Governments, an adequate number of people with a disability, their families and advocates, service providers and interested others are consulted.

Part 6  Miscellaneous matters

Availability of information

Section 38 of the Guidelines deals with the provision of information to the public on request from the public.  It states that, if requested, an officer of the department must provide the public with copies of various document relevant to the administration of Part II of the Act and, ultimately, to the approval of grants under this Part.

Section 38 replicates the existing provision in the current Guidelines and extends the list of the documents to be made available to the public by the inclusion of the disability employment standards determined by the Minister under subsection 5A(1) of the Act and the key performance indicators relevant to those standards.

“Officer of the Department” is defined in section 5 of these Guidelines as an APS employee in the Department responsible for performing functions under these Guidelines.

Delegation

Section 38 of these Guidelines provides the Secretary with the discretion to delegate to an officer of the Department the Secretary’s powers under paragraph 18(1)(a) and under 29(a) (the approval of the form of notice of intention to obtain a certificate of compliance).