This article provides guidance on factors that are relevant to the suitability assessment for providers and personnel under the NDIS

BY KAI SINOR

 

When considering applications for registration as an National Disability Insurance Scheme (‘NDIS’) provider under the National Disability Insurance Scheme Act 2013 (NDIS Act), the NDIS Commission is required to assess the suitability of the applicant. This article summarises factors that are relevant to the suitability assessment. Details of the legislation and other resources cited in this article are available in the full text guidance note here.

Further guidance on decisions to register a provider under s73E is available here.

Suitability

Rule 9(2) and 10(2) of NDIS Provider Registration Rules (Provider Registration Rules) set out the matters that the NDIS Commission must “have regard to” when considering suitability. These matters include, but are not limited to:

  • insolvency;
  • a criminal conviction for an indictable offence;
  • any findings of fraud or dishonesty, including misrepresentations that have resulted in administrative, civil or criminal proceedings;
  • adverse findings or enforcement action by a State or Territory government department or authority established for a public purpose; and
  • adverse findings or enforcement action by an Australian corporations, investment, charities, or competition and consumer regulator, or AUSTRAC, the Australian Crime Commission or the Australian Prudential Regulation authority.

Decisions on suitability are discretionary

The matters that must be considered reflect indicators of risk which, if found to exist, may lead to a determination that the provider (or a member of the key personnel) is not suitable.  All suitability assessments are on a case-by-case basis.  Whether the decision maker is “satisfied” that a person is not suitable will turn on the facts, having regard to the nature of the matter, or matters, which are indicated and whether the available information satisfies the decision maker that the person is, or is not, suitable.

Consideration of types of supports or services key personnel will be involved in

“Key Personnel” means individuals who hold key executive, management or operational positions in an organisation, such as directors, managers, board members, chief executive officer or chairperson.

When considering an application for registration, the decision maker must be satisfied that the applicant is suitable to provide supports or services to people with disability. However, when assessing matters that have the potential to impact suitability of key personnel, consideration is given to the specific classes of supports or services that the provider will be registered to provide.

Adverse findings by a government department, authority or other body established for a public purpose

The Provider Registration Rules require that the decision maker have regard adverse findings or enforcement action by a State or Territory government department or authority. The requirement that there is a “finding” means that an inquiry, investigation or other relevant process has completed and resulted in a conclusion that is adverse.  Generally, this will mean that the finding was substantiated as part of that process.

Consideration of other risk factors

The NDIS Commission can also take into account “any other matter consider[ed] relevant” to the question of suitability. This may include, for example, information gathered internally from reportable incidents, complaint handling activities or compliance activities associated with previous registrations “any other matter the Commissioner considers relevant”.

As noted above, the decision maker has discretion consider relevant information that indicates a risk and to decide whether, in a particular case, there is conduct, behaviour, events or other circumstances that affect the suitability of the applicant (or their key personnel).  Decisions about whether a particular matter is relevant are guided by consideration of the objects and general principles set out in the legislation.

The “other” factors that may be considered when assessing suitability are not confined by the legislation. However, the factors considered must be relevant.  There is an implied limitation on factors to which the decision maker may legitimately have regard; these limitations are defined by the subject matter, scope and purpose of the legislation.

Risks that are relevant to suitability

The vetting of providers and key personnel who are not suitable is a safeguarding mechanism that prevents people (and entities) from delivering supports or services where there is evidence to indicate they may pose a risk.  The matters listed in the Provider Registration Rules are matters to which the NDIS Commission must have regard, but a finding that one of those matters exists does not mean that a person is automatically determined to be unsuitable or that registration will be refused.  Guidance from the NDIS Commission confirms that all suitability assessments are on a case-by-case basis. Conduct, behaviour, events or circumstances are more likely to adversely impact suitability if there is:

  • a risk of harm to health, safety or well-being, or
  • potential for people with disability to experience harm arising from poor quality or unsafe supports or services.

Whether the applicant has previously been registered

If the entity (or in the case of a sole provider, the person) was previously registered, this may be considered when assessing suitability.  Information gathered internally from reportable incidents, complaint handling activities or compliance activities associated with previous registrations may be assessed as “any other matter the Commissioner considers relevant”.

Procedural fairness

Procedural fairness is a fundamental common law right that gives people an opportunity to be heard before a decision is made which affects their interests.

The steps that are required to give procedural fairness depend on the procedure (if any) set out in the legislation. Where there is no express procedure, procedural fairness is still expected, unless there is clear contrary legislative intention. At a minimum, procedural fairness will require:

  • Giving prior notice that a decision that may affect a person’s interests will be made.
  • Disclosure of the ‘critical issues’ to be addressed, and of information that is credible, relevant and significant to the issues.
  • A substantive ‘hearing’ (oral or written) with a reasonable opportunity to present a case.  For decisions about provider registration, this ‘hearing’ will generally be written.  In certain cases, it may be appropriate to consider whether the issues can be presented and decided fairly by written submissions alone.

Further guidance on suitability assessments is also available on the NDIS Commission website.

For more information, contact Michael Pagsanjan (info@mpslaw.com.au).