It is important to be aware of the NDIS Quality and Safeguards Commission’s Compliance and Enforcement Policy. It is one of the ways the Commission encourages best practice among NDIS providers and minimises risk to participants. The Commission takes a responsive and proportionate approach to enforcing regulation. This means the strongest actions apply to the most serious issues and breaches.

If the NDIS Commission has concerns that a provider is not meeting legislative requirements, they will first try engage with them to aid compliance. The Commission will then consider if further action needs to be taken. The Commission will first try to implement administrative measures before taking stronger actions to address non-compliance.

The NDIS has many tools to address non-compliance. The regulatory pyramid illustrates how these tools work. The least serious are at the bottom and most serious at the top.

Here is a summary of the 8 measures that may be taken if non-compliance occurs:

1. Education and persuasion aim to encourage providers to understand their obligations and improve their practice. If the Commission is satisfied a provider has remedied a breach, no further action may be taken.

2. Investigations involve the Commission investigating complaints and reports of non-compliance.

3. A compliance notice is a direction to a provider to do (or refrain from) specified things where non-compliance occurs. These are issued when non-compliance with the National Disability Insurance Scheme Act 2013 (the Act) is suspected. Failure to comply may result in a civil penalty.

4. An enforceable undertaking is a written agreement committing the provider to a specific action. This is to prevent the contravention of a provision of the Act. It provides an opportunity for improvement.

5. Injunctions intend to compel a provider to take action or refrain from a certain action. They intend to prevent risk to NDIS participants.

6. Civil penalties are a financial penalty imposed by a court. They are not a criminal offence but exist to deter providers from breaching the law. There are specific sections of the Act that carry civil penalties for non-compliance. There are maximum penalty units applicable to each provision. These units show the severity of the breach. One penalty unit equals $210, so if your maximum penalty unit is 300, your fine could be $63,000!

7. A variance or suspension of registration may occur when inappropriate conduct occurs. The Commission will balance considerations if there are consequences for participants.

8. Banning orders prohibit or restrict specified activities by a provider or employee. This is the most extreme consequence and is only used in the most serious of cases.

The NDIS Amendment (Strengthening Banning Orders) Act 2020 came into force in late 2020. The NDIS Quality and Safeguards Commission now has greater powers to ban unsuitable providers and workers from working with NDIS participants. Regardless of whether they are active or not in the sector.

Details of providers and workers who have been banned are publicly listed in the NDIS Provider Register.

It is important to be aware of these measures, even if you think non-compliance won't happen to you. Staying compliant will help your business prosper and keep participants safe. For more information, especially a break-down of fines, look at the NDIS Quality and Safeguards Commission Compliance and Enforcement Policy.

This article has been updated on 14/01/21.

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