NDIS Commission Investigations and Banning Orders
What is the NDIS Commission?
The NDIS Quality and Safeguards Commission also referred to as the NDIS Commission, is an independent commission which was established on 1 July 2018, to improve the quality and safety of services funded by the “National Disability Insurance Scheme”.
The NDIS Commission exists as part of a federal agreement between the Australian Government and states and territory governments, named the “NDIS Quality and Safeguarding Framework”.
The NDIS Commission’s role is to:
- manage complaints about NDIS providers;
- improve the quality and safety of NDIS supports and services;
- regulate NDIS service providers and workers;
- lead education, capacity building and development for people with disability, NDIS providers and workers.
Regulatory Compliance and Enforcement
The NDIS Commission’s regulatory powers and functions are set out in the National Disability Insurance Scheme Act 2013 (the Act) and associated Rules.
An important component of the NDIS Commission’s regulatory powers involves compliance and enforcement of NDIS providers.
A large part of the NDIS Commission’s strategy for compliance and enforcement involves enforcing the law through the use of administrative action and by initiating formal enforcement proceedings where they deem it to be necessary or appropriate.
The compliance and enforcement actions available to the NDIS Commission are:
- administrative matters (these actions include education, corrective action requests, warning letters, compliance notices, infringement notices, enforceable undertakings, varying, suspending or revoking registration, and bans); or
- court-based (these actions include injunctions, taking action to enforce an undertaking, and civil penalties).
NDIS Commission Investigations
Before the NDIS Commission decides which compliance or enforcement action is required, the NDIS Commission will investigate complaints and reports of non-compliance with the NDIS Practice Standards, the NDIS Code of Conduct, or any other legislative requirements.
The NDIS Commission can investigate these complaints at their own discretion, due to their wide-ranging investigative powers under the Regulatory Powers (Standard Provisions) Act 2014 and their even wider information-gathering powers under section 55A of the Act.
Compliance Action which Can be Taken
Upon investigating any alleged non-compliance or harm, the NDIS can take a wide range of actions depending on the seriousness of the alleged conduct.
A list of possible compliance actions which can be taken by the NDIS, from most serious to less serious, is as follows:
- Revoke Registration
- Civil penalties
- Injunction, infringement notice, suspend the registration
- Compliance notice, enforceable undertaking, varied registration
- Registration, audit, investigation, corrective action request, warning
- Education, persuasion, compliance support.
Appeal and Review Rights for NDIS Commission Decisions
If a person is affected by an NDIS Commission decision, they have the right to apply for that decision to be reviewed in the Administrative Appeals Tribunal (AAT) upon application. Strict time limits apply, and so a person who has been subject to such a decision should obtain legal advice immediately on their options and limitation periods.
The NDIS Commission has published a table of decisions that can be reviewed at the AAT, as set out below:
|A decision to refuse to register a person as a registered NDIS provider
|A decision to impose conditions to which a person’s registration as a registered NDIS provider is subject
|A decision to vary, or refuse to vary, the registration of a registered NDIS provider
|A decision to suspend the registration of a registered NDIS provider
|A decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider
|A decision to give a compliance notice to an NDIS provider
|A decision to make a banning order
|A decision to vary, or to refuse to vary or revoke, a banning order
Getting Legal Advice on NDIS Commission Matters
Generally, the best strategy in any NDIS Commission investigation is to obtain legal advice from lawyers who are experienced in NDIS matters and administrative law generally.
NDIS Providers being investigated by the NDIS Commission should obtain legal advice as early as possible, since this early approach may be effective at minimizing the risk of higher-level compliance action being taken against that NDIS provider.
For example, in some cases, early cooperation with the NDIS Commission through the assistance of a lawyer may assist NDIS providers in demonstrating that they are willing to take corrective action which would warrant lower-level disciplinary action, whilst minimizing the risks inherent to a regulatory investigation and possible prosecution.
NDIS providers who do not obtain appropriate legal advice early, often face higher-level compliance action which could lead to more legal costs if the NDIS provider wishes to appeal that decision. It is for this reason that obtaining early advice can also lead to significant cost savings for the NDIS provider.
We Can Help
We are experienced in assisting NDIS providers in Australia navigate the complexities of an NDIS investigation, so that the best possible outcome can be achieved.
If you are an NDIS provider or NDIS provider employee who is under investigation, call Potts Lawyers today on (07) 5532 3133 to assess your eligibility for a free consultation with a member of our litigation legal department.