Yes: In some circumstances, childproof gates and fences may be “environmental restraints” – a type of regulated restrictive practice.
Recent cases
In RKKR and National Disability Insurance Agency [2024] AATA 2913, an application to fund building works to raise the height of an existing fence to reduce safety risks for an autistic and intellectually disabled 8-year-old participant was refused by the Administrative Appeals Tribunal of Australia (AAT) because (among other things) the proposed works:
- would have the effect of restricting the child’s rights and freedom of movement;
- would restrict the child’s free access to all parts of his environment;
- would involve the seclusion of the child in a physical space;
- constituted “environmental restraints” requiring prior state government authorisation (which had not been obtained and which required (among other things)):
- a behaviour support plan written by a qualified behaviour support provider; and
- prior government approval approval under the NSW Restrictive Practices Authorisation Policy – June 2019; and
- could therefore not be funded by the NDIS as the works (as a restricted practice) were contrary to the laws of NSW, the state in which the support would be provided.
In an earlier case, DFFG and the National Insurance Agency [2023] AATA 264, the AAT also concluded that a fence and gate were restrictive practices because they:
- restricted a 12 year-old’s access to all parts of his environment; and
- were requested in response to a behaviour of concern (a risk of absconding) and not sought merely because of the child’s age.
Specifically, the Tribunal found that,
“[t]he requested support, while enhancing the Applicant’s freedom of movement within the family property, is also intended to restrict his freedom of movement outside the family property. This is not because the Applicant is a child or young person, in which case the Applicant’s parents could install it privately. In this case, the Applicant’s parents seek funding for the fence as a means of addressing their issue of concern namely, that based on his absconding history he might abscond again, with potentially serious consequences for his safety…The Tribunal concludes that the requested support of a fence and locked gate is an environmental restraint and therefore a [regulated restrictive practice] within the meaning of section 9 of the Act.”
Why it matters
Most people take it for granted that they can move around their environments freely. But for too many people with a disability, including older children and young adults, this has not always been the case.
Restricted practices are any practice or intervention that has the effect of restricting the rights and freedom of movement of a person with disability. They include interventions such as seclusion, chemical, mechanical or environmental restraints.
Restrictive practices are regulated. NDIS providers must not use restrictive practices in respect of an NDIS participant except in limited circumstances and as last resort, and only with appropriate government authorisations and compliance with NDIS rules. In practice, this may require providers to have a specialist behaviour support provider develop a behaviour support plan. Registered providers also need to lodge evidence with the NDIS Commissioner that the use is authorised.
Bottom line
For infants, toddlers and other young children, child safety and injury prevention practices like childproof gates and fences are generally assumed to be age-appropriate and in line with community standards, and are not generally considered restrictive practices requiring state authorisation and/or NDIS notifications. Importantly, in these cases, childproof gates and fences are:
- used irrespective of whether a child has a disability;
- designed to promote children’s safety and wellbeing; and
- not implemented in response to a participant’s so-called ‘behaviours of concern’.
With older children and adolescents with disability, the rules are less clear. Providers need to be very careful to ensure they comply with laws around environmental and other regulated restrictive practices, including to seek any required state approvals before implementing such gates or fences, and to make any required notifications to the NDIS Commissioner.
As the AAT cases referred to above demonstrate, gates and fences can, in some circumstances, constitute regulated restrictive practices, e.g., when they impinge on a child or young person’s freedom of movement, and/or when they are used specifically in response to behaviours of concern.
Both decisions make it clear that gates and fences can be regulated restrictive practices even when there are legitimate concerns about a child or young person’s safety, e.g., associated with risks posed by nearby busy roads and injuries from falls.
Providers who work with children and young adults need to take care to ensure that they do not engage in restrictive practices, except where permitted, and comply with state and NDIS laws in relation to the environments in which they provide supports, including with respect to gates and fences.
Disclaimer: we have done our best to ensure that this article is correct as at the date of publication (29 August 2024). It may not reflect any changes to the NDIS Act, NDIS rules or guidelines, or restrictive practice authorisations or policies, after the date of publication. The article is intended to provide general information and is not legal advice. Formal legal or other advice should be sought for particular circumstances or for matters arising from this article.
