A registered NDIS provider has been ordered to pay a total of $2.5 million in penalties following enforcement action brought by the NDIS Quality and Safeguards Commission (Commission) in two Federal Court cases, where it was found to have breached NDIS laws and conditions of registration. These cases highlight the critical importance of strong NDIS compliance systems, incident management processes and proactive risk management for all providers.
The Court found that the provider had:
Failed to take all reasonable steps to prevent and respond to all forms of violence against people with disability. The Court considered events which occurred for a period of over two years, where there were repeated violent and aggressive acts by two participants against other participants living in a supported accommodation facility, and support workers.
Penalty: $2,000,000Failed to notify the Commission of reportable incidents within the prescribed time frames (within 24 hours on 148 occasions and within 5 business days on 49 occasions).
Penalty: $500,000
The provider was required to pay $150,000 towards the Commission’s legal costs of the two enforcement proceedings.
What the Court Considered
The Court made the following notable determinations when deciding the provider had acted in breach and when determining the penalty amounts that the provider should pay:
The provider did not properly identify and manage risks to both its participants and workers.
For over two years, the home was not a safe environment for residents or support workers.
There was a pattern of aggressive violent behaviour by two participants towards one participant, as well as towards other residents and support workers in the home.
These behaviours presented known risks that resulted in repeated instances of aggression and injury over a period of more than two years.
The provider did not take all reasonable steps to respond to and prevent further violence.
As a result, the participants and their support workers suffered actual injuries, the risk of further or more serious injuries, and significant distress.
The number and extent of contraventions at the home over a two-year period “suggests a poor culture of compliance”.
The Court’s findings reinforce the need for NDIS providers to have strong systems to manage incidents and challenging participant behaviours, which include taking appropriate and timely action to protect participants and staff from harm, and ensuring that staff are properly supported with clear and effective escalation pathways.
You can access a full copy of each decision here and here.
Why This Decision Matters for All NDIS Providers
Although the Commission has brought cases against NDIS providers for other types of breaches of the NDIS Scheme, this is the first case dealing specifically with abuse of this nature within a supported accommodation facility.
The decisions and significant penalties imposed provide a clear warning that providers must take prompt and appropriate action against known risks of harm, including by:
Properly identifying and managing risks to participants and staff.
Taking reasonable steps to ensure a safe work and home environment.
Responding promptly and effectively to incidents.
Complying with prescribed reporting obligations, such as timeframes, when managing reportable incidents.
Maintaining robust reporting and compliance processes, including:
clear policies and procedures,
ensuring staff receive adequate training, and
effective escalation processes for staff dealing with challenging or complex situations to ensure they’re handled appropriately.
Failure by a provider to meet their legal obligations can result in serious harm to participants and staff, as well as significant financial, legal and reputational consequences for the provider.
How We Help NDIS Providers Manage Risk and Stay Compliant
Responding appropriately to participant violence and other high-risk situations is complex and difficult. It is important to take the right steps promptly. Our team can help your business triage these situations, including by:
Providing timely and practical legal advice on how to respond to specific risk events in a compliant, risk-managed way.
Developing and implementing effective policies and procedures to give staff clear directions on how to handle difficult situations, including how and when to escalate.
Responding to complaints from members of a participant’s family or support team.
Investigating possible breaches and advising on legal risks and available options.
Responding to NDIS Commission complaints, investigations or enforcement actions.
Providing strategic advice on how to prevent recurrence of high-risk events.
If you need help to strengthen your compliance practices, or deal with a complex or high-risk situation, contact us today on 02 9199 4563 or at info@kinnylegal.com for expert NDIS legal advice.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.
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