This article explains the relevant factors for the NDIS Commission’s decision to register a provider

BY KAI SINOR

 

Since 1 July 2019, the National Disability Insurance Scheme (NDIS) Commission (the NDIS Commission) has been responsible for registration of NDIS providers in all States and Territories (except Western Australia).  This article summarises factors that are relevant to the NDIS Commission’s decision to register a provider under the National Disability Insurance Scheme Act 2013 (NDIS Act).  Details of the legislation and other resources cited in this article are available in the full text guidance note here.

When is registration required?

Only registered NDIS providers may provide certain classes of supports. In order to register and remain registered, providers must demonstrate that they are meeting the relevant quality outcomes identified in the new NDIS Practice Standards (Practice Standards).  An application for registration is required when a person or entity wants to register as a provider for the first time and for each subsequent reapplication for registration (i.e. ‘renewed’). Decisions to register a provider are made under s 73E of the NDIS Act.

What is considered when assessing applications for registration?

When assessing whether to register a provider, the NDIS Commission will consider (among other things):

  • Whether an approved quality auditor has assessed the applicant as meeting the applicable standards and any other requirements prescribed by the NDIS Practice Standards.
  • Whether the applicant is suitable to provide supports or services to people with disability.
  • Whether the applicant’s ‘key personnel’ (if any) are suitable to be involved in the provision of the supports or services that the applicant will be registered to provide.
  • Whether the applicant meets any other requirements prescribed by the NDIS rules for the purposes of s 73E(1)(f) (discussed below).

Decisions to register a person or entity as provider are made the person, or persons, to whom the NDIS Commissioner has delegated (the decision maker) the power in s 73E of the NDIS Act.

Suitability

Rules 9(2) and 10(2) of the NDIS Provider Registration Rules[10] (Provider Registration Rules) set out the matters that must be assessed when considering the suitability of the applicant to provide supports and services to people with disability. Questions of suitability are relevant to decisions to register a provider and to decisions to suspend or revoke registration.

Guidance on factors that are relevant to suitability is available here.

Decisions on suitability are discretionary

The factors that the decision maker is bound to consider 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.

The NDIS Commission can also take into account “any other matter consider[ed] relevant” to the question of suitability. This allows the decision maker to consider other indicators of risk and to decide whether, in a particular case, there is conduct, behaviour, events or other circumstances that affect the suitability of the applicant.  The factors considered must be relevant and 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.

Can a provider appeal a decision to refuse registration?

A decision to refuse to register a provider is a reviewable decision. This is sometimes referred to as an “internal merits review”.  A person with an interest directly affected by the decision can request that the NDIS Commission review the decision internally.  The reviewer will look at all the facts that existed at the time the decision was made. The Tribunal may also have regard to the state affairs at the time it reviews the decision, unless the provision under which the decision was made requires that only those circumstances that existed at the time the decision was made can be considered.

If not satisfied with the reviewer’s decision, any person whose interest is affected can apply to the Administrative Appeals Tribunal (AAT).

Judicial review is different to administrative review.  Administrative review (or ‘merits review’) reconsiders the facts, law and policy aspects of the original decision to determine what is the correct and preferable decision.  Judicial review is carried out by a court and looks at whether the decision is correct in law. The grounds for judicial review are limited and the court cannot ‘remake’ the decision. Inadequate reasons are not a ground for judicial review unless the reasons for the decision are so inadequate that the decision lacks an evident and intelligible justification.

Guidance on audits against the NDIS Practice Standards and review processes under the NDIS Act is available on the MPS Law website.

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