This template service agreement is tailored for providers delivering services in the National Disability Insurance Scheme (NDIS).
Providers in the NDIS are expected to have agreements in place with clients that set out, in clear and plain language, the supports the participant has chosen and how they will be provided. That sounds simple enough, but in our experience there are often gaps or other problems in the agreement. Striking the right balance of clarity and accuracy in language used in the document can be extremely difficult.
A common issue is drafting language that is very technical that may be confusing for some participants or their families. Another common problem is that the scope of what is covered by the agreement does not cover price controls and payment rules that are set out in the NDIS Price Guide. This can mean the provider is not entitled to claim for things like travel, non-face-to-face supports and NDIA requested reports (where the Price Guide allows these things to be claimed).
We have developed a template service agreement that addresses these issues. A preview of the template can be accessed here or by clicking the link below. A template schedule of supports can also be accessed here.
Please note that the service agreement is supplied as a preview version that has been modified. The preview version does not provide a complete list of clauses that are relevant to the pricing rules for the services that your business delivers.
If you have any questions about the template or require assistance preparing a service agreement, contact email@example.com
This document is general in nature and provided for informational purposes only. It does not take account of your specific circumstances. This document does not constitute, and should not be relied on, for legal advice. Seek legal or other professional advice if you have a specific problem.Click here to access the template previewhere
Changes to conditions of registration for NDIS providers registered to deliver personal supports are in effect from 19 December 2020. Are you ready?
If you are a provider in the National Disability Insurance Scheme (NDIS) that delivers Daily Personal Activities (“personal supports”), you will have recently been notified of changes to your conditions of registration. The requirements of the new conditions of registration apply only in relation to NDIS participants that (1) live alone and (2) are assisted with personal supports (in their home) by a single unsupervised worker (a “sole worker”). This article explains what providers need to do to comply with the new requirements. We have also prepared a flow chart illustrating the key steps. Other resources relating to the new requirements are accessible from the links below.
What is required?
Providers must not allow a sole worker to deliver personal supports to a participant who lives alone unless:
A written assessment of relevant risk factors is carried out (factors to be considered are explained below).
The person’s service agreement is updated to identify how the provider will supervise the worker, communicate with the participant and monitor support delivery.
If a relevant risk factor is identified, plans for supervising the worker and reporting to key personnel are documented and implemented.
A copy of the risk assessment must be given to each participant and a copy placed on the person’s file. A list of all participants that are assisted with personal supports by a sole worker needs to be established and kept up to date.
What are the relevant risk factors?
Providers will need to assess specific factors that the NDIS Quality and Safeguards Commission has identified as increasing vulnerability and isolation for participants who live alone. These are factors relating to the person’s mobility and ability to communicate, as well as the level of face-to-face contact they have with other providers and people in their support network. The following factors should be considered:
Does the person receive supports from any other NDIS provider that involves regular, face-to-face contact?
Does the person have limited or no regular contact with immediate family relatives, friends or other people in the community that the individual is well acquainted with?
Does the person rely on equipment or another person to assist with physical mobility?
Does the person rely on equipment to communicate, or on another person to assist them to communicate?
If the answer to any of these questions is “yes” a plan for supervising the sole worker will need to be developed. In addition, processes for “regular reports” to key personnel about the “care and skill with which personal support is being provided” are required.
A thorough risk assessment should be completed for every participant living alone who is assisted with personal supports by a sole worker. It is important to note that how these risk factors are assessed is important because the arrangements for supervision of the worker and frequency of reporting to key personnel must be “appropriate having regard to the participant’s risk factors”. Assessment of the risk factors also impacts what will be put in place for communication with the participant and for checking with the person about how the service agreement is being implemented (see below).
The MPS Law Risk Assessment for Personal Supports to Participants Who Live Alone can be used to guide the identification and assessment of factors that are relevant.
Updating the service agreement
Providers must also update the service agreement for each participant (who lives alone and receives personal supports from a sole worker) to identify the arrangements and processes for:
Selecting support workers, including the participant’s role in selection.
Reviewing implementation of the service agreement, which must include direct “checks” with the participant (by someone other than the worker) for feedback on their level of satisfaction with the type, quality and frequency of personal supports that are delivered.
How the provider will supervise and monitor (a) performance of the support worker to ensure performance is consistent with the agreement and (b) the participant’s safety and well-being.
How the provider will communicate with the participant. The means for communication must include, as far as practicable, face-to-face communication with the person (in their home) at an appropriate frequency.
How the provider will engage with other providers that deliver supports or services in the participant’s home or providers that support them to access activities in the community.
MPS Law has prepared a template to guide the updating of the service agreement. Generally, the service agreement is updated after assessment of the above risk factors is complete, so that arrangements for communication, supervision, reporting (if required) and monitoring can be recorded in the updated agreement. Remember to make sure that the existing template service agreement is also updated to identify the schedule as part of the agreement.
Resources in this document are accessible from the links below:
This commentary and resources that are published on this page are provided by MPS Law for informational purposes only. They are not intended to be comprehensive and do not constitute, and should not be relied on, for legal advice. This information does not take account of your specific circumstances and should be reviewed and adapted to make sure it is appropriate for your organisation, the individual needs of the relevant NDIS participant and changes to the conditions of registration that affect you, which may have changed since the date this information was published.
Use of this document does not guarantee compliance with your legal obligations. MPS Law accepts no responsibility for any loss, damage or harm that may result from using or relying on this document
Seek legal or other professional advice if you have a specific problem or consult with the appropriate government authority if you are unsure about your compliance obligations.
 MPS Law strongly recommends that these templates and resources are reviewed and updated to take account of the needs, circumstances and preferences of each individual participant, as well as the circumstances of your organisation.
Alternatively, if all reasonable efforts have been made to enter into the service agreement, a copy of the written service agreement should be given to the participant and record kept of the circumstances in which attempts to sign it were made.
 The frequency of reports is determined based on what is “appropriate”. What is appropriate in each case will vary according to the risk factors that have been identified for the participant. Refer to the MPS Law Risk Assessment for Personal Supports to Participants Who Live Alone for detailed guidance on factors that may be relevant.
 At a minimum, the arrangements for supervision and monitoring must include (as far as practicable) visits by a supervisor to the participant’s home (at a specified and appropriate frequency) to supervise the support worker in person.Risk Assessment for Personal Supports to Participants Who Live AloneRisk Assessment for Personal Supports to Participants Who Live AlonePolicy and procedure for delivery of personal supports to participants that live aloneTemplate schedule to update participant service agreement
MPS Law has developed a checklist and template register for staff engaged in risk assessed roles to assist registered NDIS providers to meet their worker screening obligations.
National Disability Insurance Scheme (NDIS) providers can use this checklist to self-assess their systems against requirements of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018.
Registered NDIS providers are required to establish a written list of risk assessed roles and keep information about persons that are engaged in risk assessed roles. To assist providers to comply with NDIS worker screening requirements, MPS Law has developed a template Register for Risk Assessed Roles which enables the required information about persons engaged in risk assessed roles to be recorded.
Note that the issues and questions set out in the checklist are of a general nature and may not reflect your specific circumstances. The checklist and template register of risk assessed roles are provided for informational purposes and do not constitute legal advice. The National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 set out a number of requirements that should be considered according to the circumstances of your organisation and the jurisdiction that you operate in. You should seek professional advice if you are unsure how these requirements apply.
MPS Law has developed a checklist to assist registered NDIS providers to identify legal and compliance risks in their agreements with contractors.
National Disability Insurance Scheme (NDIS) providers can use this checklist to self-assess contractor agreements for legal risks and compliance with NDIS regulatory requirements.
The checklist has been design to assist providers to identify gaps in meeting requirements that apply to contractor agreements under the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018.
Note that the issues and questions set out in the checklist are of a general nature and may not reflect your specific circumstances. There may be additional and important issues that should be covered by an agreement in your circumstances, depending on the nature of the arrangement you wish to enter and the circumstances of the contracting parties.
Refer to the MPS Law Worker Screening Checklist here for further information about other NDIS worker screening requirements that apply.
On 9 June 2020, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Commission) published an issues paper inviting feedback and submissions to inform its analysis of the experience of First Nations People with disability in Australia (the Issues Paper). This article provides commentary on key lines of inquiry foreshadowed in the Issues Paper. The final section of this article provides information on the recently released schedule of hearings for the remainder of 2020.
Ongoing systematic injustices
The Issues Paper notes that Indigenous people with disability are more likely to experience disadvantage and require a greater level of care and support. Moreover, there is a compounding effect for Indigenous people with disability which results in ‘double discrimination’.  Previous studies and inquiries have found that compared to the general population, First Nations people with disability are more likely to:
- have experienced threats of physical violence
- have poorer health outcomes than other Australians with disability
- have experienced problems accessing health services
- have been removed and/or had relatives removed from their family
- experience high or very high levels of psychological distress
- be detained due to a cognitive disability, foetal alcohol syndrome or other impairment, and
- be reliant on government pensions or allowances as their main source of personal income and less likely to be studying and in jobs.
- The Commission has posed twelve questions and invites First Nations people with disability, their families and organisations to respond to these questions and/or provide information about programs and approaches that are working well.
A human rights based approach
The United Nations has emphasised the need for First Nations people (and their representatives) to be involved in all aspects of the design, implementation and monitoring of relevant Government policy and planning initiatives. The Commission invites feedback on the barriers which prevent First Nations people living with a disability from the full enjoyment of their human rights and how Government can better involve First Nations people in the development of policy and plans that may impact them.
A life course approach
Transitioning between stages of life, such as between early childhood, schooling, adolescence and joining the workforce, is an area where people living with a disability may require extra support. The experience of First Nations people living with a disability moving through transition phases may differ and there may be additional risk factors that heighten the potential of violence, abuse, neglect and exploitation.
Possible risk factors include intergenerational trauma, increased contact with the criminal justice system, systematic discrimination, a lack of access to appropriate health services and (in later years of life) poor aged care service infrastructure in remote areas. The Commission seeks submissions to better understand what changes are needed to support First Nations people with disability across the course of their lives and ensure they are able to live a life free from violence, abuse, neglect and exploitation.
Figure 1. Issues facing First Nations people with disability and people with disability in different setting across their life course. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Issues Paper, June 2020) 3.
Community led solutions
The 2016 Redfern Statement, made between Aboriginal and Torres Strait Islander peak bodies, drew attention to the urgent need for First Nation peoples involvement in health, justice, violence prevention, early childhood and disability matters. The call for greater community-led initiatives is consistent with a growing body of evidence showing that approaches led by First Nations peoples are more effective and achieve better outcomes for the individuals and communities concerned.
The Commission seeks submissions to understand how initiatives led by First Nations people can be supported, expanded and how they will operate alongside existing frameworks. 
The Commission invites First Nations people with disability, their families and organisations to respond to the Issues Paper and/or provide their views on programs and approaches that are working well. In addition to responding to issues papers, people can also share their story by contacting the Commission by phone, in writing or by making an audio or video recording.
Submissions are encouraged to be submitted by 11 September 2020. A copy of the Issues Paper, along with the discussion questions, can be found here.
Hearings in the months ahead
Following a halt on hearings earlier this year in the wake of COVID-19, the Commission recently released its schedule of hearings for the remainder of 2020. These hearings will focus on issues such as the use of psychotropic medications, barriers in education and employment, interactions with the criminal justice system and training and education for health care professionals. A hearing on the experiences of First Nations people with disability will be held in Brisbane on 23 November 2020. Dates and details of scheduled hearings can be viewed on the Commission’s website here.
If you, or anyone you know, has been affected by the Disability Royal Commission, Blue Knot Foundation offers specialist counselling support and a referral service. Please contact Blue Knot Foundation on 1800 421 468 or view the Disability Royal Commission’s support services website.
For more information, please contact Michael Pagsanjan (firstname.lastname@example.org).
 The Commission, as part of their investigation, was given specific direction to have regard to the experiences of Aboriginal and Torres Strait Islander people living with a disability. See Letters Patent (Cth), 4 April 2019 amended 13 September 2019, (g).
 The Issues Paper cites several recent publications which conclude that First Nations people living with a disability face heightened risks of abuse and neglect. The cited studies include published work from the Australian Bureau of Statistics, Senate Community Affairs References Committee and the Australian Institute of Criminology.
 This follows calls from First People’s Disability Network for the development of a First Nations disability sector. See First People’s Disability Network, Ten Priorities to Address Disability Inequity in Aboriginal and Torres Strait Islander Community and the National Disability Strategy and the National Disability Insurance Scheme (2018). Online at: https://fpdn.org.au/wp-content/uploads/2018/10/FPDN-ten-priorities-2018.pdf.
On 12 June 2020, the Commonwealth Government proposed amendments to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) that will strengthen the NDIS Commission’s powers to issue banning orders.
These amendments come in the wake of the tragic death of Ms Ann Marie Smith and recognition across all levels of government, that the circumstances which led to her death must never be allowed to happen again. Separately to these amendments, the NDIS Commissioner has announced that an independent inquiry, lead by the Hon Alan Robertson SC, will examine the adequacy of regulation and services provided to Ms Smith, including regulation in relation to quality and safeguarding pursuant to functions and powers of the commissioner of the NDIS Commission.
The current framework
Currently, under section 73ZN of the NDIS Act, the NDIS Commissioner has the power to make banning orders against either a provider or a worker, where there are reasonable grounds to believe at least one of the following situations exist:
- the person has breached, or is likely to breach, the NDIS Act, or has been involved in a breach by another person;
- the person is not suitable to provide supports and services to a person with a disability;
- where there is an immediate risk of harm to a person with a disability if a provider continues offering supports and services;
- the person has been convicted of an offence involving fraud or dishonesty either as a worker or a partner/director of a company who is a registered provider; or
- the person is insolvent under administration.
A banning order may apply generally, to prevent a provider or person from providing any NDIS supports or services, or may be limited to a class of supports or services, or to particular people.
Before issuing a banning order, the Commissioner would consider if the action would be reasonable, timely and proportionate in relation to the issue in question, what action has been taken previously, and whether there are more appropriate avenues to deal with the issue. These and other general provisions will not change.
Changes that are proposed
Under the current legislation, the Commissioner can only make a banning order when the worker is engaged by a provider that is delivering services under the NDIS. This means that if a worker’s engagement ends, such as if a worker is sacked because the issue under consideration, the NDIS Commissioner cannot issue a banning order to the worker. Similarly, it is currently unclear even if a banning order is made before a worker’s engagement ends or the provider they work for leaves the NDIS, whether the order stays in force. In addition to this, the Commission cannot issue a banning order to a person who is not yet involved in the delivery of NDIS services but is unsuitable to be involved in delivering them. In other words, where a person who has been banned another sector (such as aged care or child care) for conduct that indicates an unacceptable risk to people with disability, a banning order cannot be made against that person until they start to deliver services under the NDIS.
New subsection 73ZN(2A) empowers the NDIS Commissioner to make a banning order where there is a reasonable belief the person is ‘not suitable’ to ‘be involved in the provision of specified supports or services’ and the person has not previously been working in the NDIS.
New subsection 73ZS(5A) allows the NDIS Commissioner to public details of such orders on the NDIS provider register. The NDIS provider register, which is publicly available, may be searched by persons with disability and their representatives to ensure that the providers or workers they are using are not subject to a banning order. This is an important protection that provide timely, accurate access to banning order information for employers and self-managed NDIS participants, helping to ensure they can make an informed judgment about who should work with people with disability.
The amendments were introduced in Parliament on 12 June 2020. A copy of the amendment bill can be accessed here. Further amendments to the NDIS Act will be proposed in the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Full Scheme) Bill 2020, however due to the pandemic, public consultation and introduction of the bill has been delayed to the spring sittings of Parliament. We understand that those amendments follow the Government’s review of the legislation in 2019.
As at 31 March 2020, 17,006 NDIS providers were registered with the NDIS Commission. Of those registered, 45 per cent were individuals or sole traders.
For more information, contact Michael Pagsanjan (email@example.com).
BY KAI SINOR
Last week the National Disability Insurance Scheme Quality and Safeguards Commission (the Commission) published the findings of research into the causes and contributors of deaths to people with disability.
The report details the findings from the review of nine-hundred and one reported deaths of people with disability across New South Wales, Queensland and Victoria. This article summaries key issues in the report’s findings, all of which will form part of the Commission’s regulatory priorities.
What did the report find?
Of the nine-hundred and one deaths reviewed within the scope of the report, the four most common causes of death were:
- Respiratory disease (19%) of which the leading underlying causes of death were pneumonitis caused by solid and liquid irritants, and pneumonia.
- Circulatory diseases (13%) of which ischaemic heart disease was the leading underlying cause of death.
- Neoplasms (abnormal growths) (13%) whose most frequent types included malignant neoplasms of the digestive organs and malignant (cancerous) neoplasms of the trachea, bronchus and lungs.
- Nervous system diseases (14%) of which epilepsy was the leading cause of death (5% of deaths overall).
Unnatural or external causes of death accounted for 5-8% of all deaths investigated, the vast majority of which related to choking (choking was associated with 34 of 901 deaths). Of the twenty-nine reported deaths by choking:
- 83% related to choking on food;
- 14% related to choking on vomit; and
- One person (3%) choked on a foreign object (latex glove).
The review focussed on deaths of people with disability living in supported disability accommodation or receiving services from specialist disability services providers. It did not sample deaths of all people with disability. However, the overwhelming majority of in-scope deaths involved people with intellectual disability.
The review identified that respiratory deaths involved high rates of psychotropic medications and polypharmacy, including where there was no diagnosed mental health condition. This reflects the common (and troubling) practice of using medications to control behaviours of concern (“chemical restraint”). Data collected by agencies in New South Wales showed that, for people receiving disability services, respiratory disease was also the largest contributory cause of death. Risk factors for the other leading causes of death are discussed below.
The regulatory response
The Commission will develop an additional NDIS Practice Standard that specifically addresses quality and safety in mealtime supports. Once in place, the standard will apply (to providers who provide an applicable category of supports) from the time that their registration is renewed.
In the coming months, providers delivering certain categories of supports (see below) will receive “Provider Practice Alerts” outlining issues of concern and potential risks to quality and safety. The NDIS Commission will also develop projects and training targeted at workers involved in mealtime management to build their capacity in key risk areas and understanding of dysphagia (including a new e-learning module), and will develop a guideline on reducing the use of chemical restraints.
Increased focus on incident management and reporting
The NDIS Commission is likely to increase its focus on incident management systems and incident reporting practices. Issues with incident management systems that the Commission is generally concerned with are:
- whether incident notifications are lodged appropriately (timely and with adequate information);
- how the provider has responded to incidents (including how impacted persons are supported); and
- whether workers involved in incidents were appropriately trained (for delivery of the supports or in responding to the incident).
Incidents that involve the use of chemical restraint (i.e. psychotropic medication or polypharmacy), a failure to coordinate or follow up with primary healthcare services or poor client communication (i.e. poor progress noting or limited use of communication plans and communication accommodations) are indicators of risk that will be of particular concern to the Commission.
Incident management systems will continue to be a focus at audit; the NDIS Commission has stated it will put in place a process to inform the auditors if there is a provider who has had recent reportable deaths (or where there are other indicators of risk relevant to the leading causes of death), and will direct the auditor to look at particular Practice Standards.
Providers that report deaths which are preventable, or who are required to frequently hospitalise clients (or where there are reports of persistent health-related concerns) will be subject to closer scrutiny and may, where appropriate, be prioritised for compliance action or investigation. Providers may also receive directions from the NDIS Commission to undertake practice reviews of incidents involving (or arising from) deaths, serious injuries or ‘near misses’.
Registration categories that involve risk factors
Providers registered in the following groups are most likely to involve the provision of supports that are associated with the leading causes of death or which involve identified risk factors:
- Class 4: high intensity daily personal activities
- Class 7: assistance with daily personal activities
- Class 10: specialist positive behaviour support
- Class 14: community nursing care
- Class 15: assistance with daily life tasks in a group or shared living arrangement
- Class 17: development of daily living and life skills
- Class 18: early intervention supports for early childhood
- Class 25: participation in community, social and civic activities
- Class 28: therapeutic supports (speech pathology)
- Class 33: specialised support coordination
- Class 34: specialised supported employment
- Class 37: group- and centre-based activities
Education, capacity building and other projects implemented by the Commission following the review will be targeted at providers in these registration categories.
What were the contributing risk factors?
- High rates of psychotropic prescriptions and polypharmacy, increasing risk of impaired swallowing function, sedation and hypersalivation.
- Lack of proactive and appropriate treatment of known risks such as dental problems, GORD, epilepsy, dysphagia, PICA.
- Delays in diagnosis and treatment of respiratory related illness.
- Lack of timely access to influenza and pneumococcal vaccines.
- Lack of comprehensive nutrition and swallowing assessments for at-risk groups.
- Safe mealtime guidelines not consistently being adhered to due to lack of staff knowledge and/or under-staffing.
- Poor management of respiratory infection risk following surgery for falls and fractures.
- Poor access to respiratory specialists and other chronic disease management and other out-of hospital programs.
The report found that risk factors and areas of problematic practice for choking were similar to those for respiratory deaths.
Circulatory disease and neoplasms
- High presence of known risk factors, including obesity, hypertension, diabetes, low physical activity levels, hypertension.
- Lack of coordination between services to address identified risk factors.
- Poor management of lifestyle-related risks, including insufficient referral and contact with specialists to manage known risks.
- Lack of staff awareness of, or compliance with, healthy lifestyle policies.
- High rates of psychotropic prescriptions and polypharmacy, and insufficient specialist review of medications.
Nervous system diseases
- It was not always clear whether people had access to a specialist neurologist for the management and oversight of their epilepsy (including regular medication reviews) prior to death.
- Some people who died appeared to have been administered sub-therapeutic dosages of anticonvulsant medication.
- Some cases of sub-optimal recording and charting of seizure activity were noted.
Physical health problems
The vast majority of people who died experienced multiple physical health problems in addition to their disability. These included dental problems (51%- 83% of people) and epilepsy (28%- 49% of people). Constipation, urinary incontinence and Gastro Oesophageal Reflux Disease (GORD) were also common.
Swallowing and mealtime support
Where such data was collected, it was noted that a considerable proportion of people who died experienced issues that may have impacted how and/or what they ate. For example:
- missing teeth and other dental problems; and
- swallowing problems related to GORD, medications and disease processes.
Mobility & communication
A high number of in-scope deaths involved people who required communication and/or mobility support. The number of people requiring a communication plan who actually had one in place was either unknown or not reported in most samples.
The review noted high rates of polypharmacy. Amongst the deaths reported in the review, many involved people with disability who been administered psychotropic medications. Such medication was often prescribed in the absence of a diagnosed mental illness.
Across samples taken of deaths in each jurisdiction, 14% to 48% of people had not received an influenza vaccination in the twelve months before their death. Where reported, it appeared that between 25% and 83% had not received a pneumococcal vaccination in the last twelve months.
Accessing preventive health care measures
Across reports, the review noted a lack of proactive support for preventative health care measures, including a lack of recommended vaccinations, dental check ups, comprehensive health examinations and allied health referrals.
Managing emerging and chronic risks
Findings across jurisdictions raise concerns about service providers failing to proactively manage emerging and chronic health risks. For example, identifying obesity but failing to refer the person for weight loss support.
Supporting client communication
Limited use of communication plans and other communication accommodations may have curtailed some clients’ ability to express emerging health concerns to staff. The one report that examined this issue in detail found 38% of those who required a communication plan did not have one in place
Responding to medical emergencies
Staff were not always confident, or aware of best practice standards for responding to a medical emergency such as an epileptic seizure or a choking event. In some cases, staff had difficulty distinguishing between an urgent and a non-urgent health situation, thus leading to delays in treatment.
Limits of the study
Differences between how agencies investigate and report deaths meant that there was no consistent method across reports for analysing cause of death based on demographic- or disability-related indicators. There were also differences in how each jurisdiction defines a “reportable” death under coroner legislation and in the time range of deaths sampled (seven months to nine years).
For more information, contact Michael Pagsanjan (firstname.lastname@example.org).
This guidance note discusses the factors that are considered by the Administrative Appeals Tribunal (AAT) when making orders under s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), to stay implementation of decisions. In particular, how the Tribunal balances these factors when dealing with decisions to cancel, suspend or refuse to renew registrations and licenses.
BY KAI SINOR
Details of the legislation and resources cited in this article are available in the full text guidance note here. Refer to our guidance ‘Asking the AAT to stay or alter a regulatory decision’ for more general information on stay orders and how they are obtained.
What is a stay order?
Subsection 41(2) of the AAT Act allows the Tribunal to make orders to “stay” or “affect” the implementation of a decision that is under review. A stay order preserves the position of the affected person until the review is completed. In a regulatory context, these orders are appropriate when implementation of the decision puts the business at risk of insolvency.
Stay order considerations
The central question for the Tribunal is whether the order is necessary to secure the effectiveness of the review. The test for making a stay order is whether it is “desirable to do so after taking into account the interests of any persons who may be affected by the review”.
When assessing an application for a stay order, the AAT will consider:
- whether the hearing on the decision under review, if successful, would be rendered pointless if the stay is not granted.
- prospects of success or merits of the application for review;
- consequences for the applicant if the stay is refused (i.e. hardship);
- whether it is in the public interest to grant the stay;
- functions and responsibilities of the statutory decision maker, nature and purpose of the reviewable decision, and the public interest in relation to it.
- The effect that the decision under review will have on the individual (person or business) is a principal factor in deciding whether to stay a decision. The context for regulatory decisions necessarily requires the Tribunal to balance the hardship to the affected individual against the danger to the public if the applicant continues delivering services (that the decision affects) to the public. Other factors and circumstances of the case must also be considered, including the “interests of persons who may be affected”.
The factors discussed in this article are not a “check list” and should not be regarded as a comprehensive list of all relevant matters. What is relevant in a particular case will depend on the circumstance of each case and the legislation under which the original decision made.
Necessary for securing effectiveness of the review
The purpose of a stay order is to preserve the status quo so that the so that the rights affected by the decision under review can eventually be reinstated (if that is the ultimate outcome of the AAT’s review). Where the applicant is genuinely likely to become insolvent if the stay is not granted, the review will be rendered pointless. In these circumstances, a stay order may be necessary to “secure the effectiveness” of the review. This weighs in favour of granting a stay order.
As the purpose of a stay order is to preserve the status quo, the applicant needs to demonstrate that the order will restore the position as it stood before the decision. If the applicant’s position cannot be restored, the order is unlikely to be necessary to secure the effectiveness of the proceedings.
Prospects of success
When assessing prospects of success, it is not the role of the Tribunal to conduct a “mini trial” of evidence and issues to be raised at the final hearing of the decision under review. The task of the Tribunal is to consider whether there exists facts and circumstances which would provide some basis for success. The prospects of success must be more than “hopeless”. The Tribunal accepts the prospects of success are favourable where:
- The applicant satisfies the Tribunal that there are factual and legal arguments that, if accepted, may result in a final decision that registration should not be cancelled.
- There is a “serious question” as to the decision-maker’s interpretation of the provision purported to have been breached.
- The alleged breaches relate to a lack of clarity or detail in documentation that is required to conform with a regulatory standard and there is material that demonstrates a significant difference in the interpretation of the regulatory standards and what is required to comply.
- There is a “genuine and substantial dispute” as to the degree of the applicant’s non-compliance at the time of the regulator’s findings and the degree of non-compliance at the time of the stay order hearing.
The Tribunal will evaluate the prospects of success at the time of trial based on the provider’s capacity to take the necessary remedial actions. In doing so, the Tribunal will take into account the nature and extent of the alleged breaches and the steps undertaken to address those issues. Steps to engage consultants and appoint persons to compliance and oversight roles are relevant, however merely engaging a consultant is itself insufficient without evidence of what is planned to address the problems in the business.
Hardship to the applicant is a significant factor, particularly where the effectiveness of the review is consequently at risk (i.e. where financial hardship risks causing insolvency). Hardship is balanced against other factors, but the Tribunal places particular emphasis on the public interest. Note that if a person suffers a loss as a result of a decision, there is pressure to bring the matter to hearing quickly – this increases pressure to prepare and consider the case as quickly possible. A stay order removes this pressure, so if there is hardship to the applicant and the public is not going to be adversely affected, the case for a stay order is strong.
Financial hardship is a legitimate concern, but evidence that is speculative and dependent on questionable and uncertain bases is unlikely to persuade the Tribunal that the orders are necessary to secure the effectiveness of the review. When assessing hardship, the Tribunal has observed the following:
- Speculations and bare assertions about the likely impact on the business are not enough.
- Arguments about the immediate financial impact of refusing to grant a stay are insufficient without evidence to satisfy the Tribunal that the business will become insolvent.
- Evidence must demonstrate how implementation of the decision will cause insolvency. If adverse affects of the decision will still occur even if the stay is refused, the order may not be necessary or “desirable”.
- An applicant may have difficulty demonstrating that their reputation was damaged to such a degree prior to hearing that it could not “effectively recover commercially”.
Other factors influencing the assessment of hardship
- Whether the applicant’s financial position was brought about by its own actions.
- Whether the evidentiary material gives the Tribunal “any certainty” about what the applicants reserves/liquid assets are or what the legal costs required to progress the review proceedings would be.
- Income that is available to the applicant from delivery of unregulated or unsubsidised services to other clients (to whom business can deliver services to without registration, license or authority etc.).
- The applicant’s capacity to engage consultants to remedy compliance problems may indicate the financial hardship is not so severe that the order is necessary to secure the effectiveness of the review.
Interests of persons who may be affected
Before granting a stay order, the Tribunal must consider the “interests of any persons who may be affected by the review” and how competing interests are resolved. Persons with an interest affected by decisions to cancel, suspend or refuse to renew a registration or license is taken to include:
- clients of service providers;
- contractors and employees; and
- the public.
Hardship to the person affected by the decision is weighed against the danger to the public if the applicant is allowed to carry out the regulated activities. The integrity of the regulatory scheme, the role of the regulator and the protection of public revenues are factors taken into account.
How the Tribunal balances the interest of the regulatee and the public will depend on the circumstances of the case. Where the alleged breach occurred previously and action was not taken by the regulator, this may indicate to the Tribunal that there is no immediate danger to the public in staying the decision.
In Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner (Transcon) the Tribunal emphasised that there is a substantial public interest in ensuring that vulnerable persons are not exposed to the risks that follow from receiving care of non-compliant providers.
Clients and staff
The position of clients receiving regulated services who may be affected is an important consideration. The provision of services to people in remote communities where it is difficult to source alternative services weighs in favour of a stay. The impact on the incomes of staff is a relevant consideration. The Tribunal will also take into account whether staff employed have any specialised training that increases their “reasonable prospects” of finding alternative employment. The approach taken in Transcon however, suggests that the interests of clients and staff are given less weight where there are breaches of standards for quality and safety to persons that are vulnerable. In the case of staff, this is because these statutory schemes are directed at ensuring health, safety and well-being; they are not directed at ensuring the ongoing employment for those engaged in the provision of that care.
For more information, contact Michael Pagsanjan (email@example.com).