If you plan to provide NDIS services, it is mandatory to have a written service agreement only where you provide Specialist Disability Accommodation. That said, you should generally have a service agreement in place as certain things are only claimable if included if you obtain the participant’s consent first. For example, cancellations and provider travel are best captured in a service agreement.
In addition, the service agreement will outline:
- the type of services that you provide and how it is priced;
- the expectations of the participants and you as a service provider; and
- the rights of participants under the Australian Consumer Law.
This article will discuss some key clauses you should include in your NDIS service agreement.
Obligations and Responsibilities
An important function of a service agreement is to set out everyone’s roles and responsibilities. This ensures that you and your clients are protected if things go wrong. It also helps to ensure that you have the right information to provide the services.
Parties Clause
An important part of the service agreement is to ensure that the right people are signing the agreement. This is important when providing services to minors and people who do not have legal capacity to sign.
Continue reading this article below the formServices Clause:
The service agreement should clearly state the type of services you will provide. This allows you and your client to know:
- what services you will provide;
- if there are specific services you are not willing to provide; and
- the procedure to follow if a service needs to be cancelled.
Furthermore, you should also tailor the service agreement to your services. For example, if you are providing both support coordination and support services, you will need to include clauses relating to how you will manage conflicts of interest. An agreement for supported independent living would also have different clauses and more detailed descriptions of services than an agreement where the provider only provides social and community access.
Price Clause
A price clause allows you and the participant to know the cost of the service and whether there are any extra charges. You can set the price that works for you for the services provided that the price is not in breach of the NDIS legislation or the Australian Consumer Law.
For example, suppose you are a registered provider or an unregistered service provider providing services to plan or manage participants. In that case, you must charge within the price limits and pricing arrangements where specified in the NDIS Pricing Arrangements and Price Limits (Price Guide). Note that there are separate pricing arrangements if you provide assistive technology or specialist disability accommodation services.
Termination and Cancellation Clauses
It is also important to set out in a service agreement how parties can terminate the services and the cancellation process. Some line items and services, such as programs of support, need to have the terms clearly set out. Additionally, the participant should be able to terminate without any penalty or costs associated with the termination.
The service agreement can also provide that you may terminate services where your staff are at risk of harm or the participant does not have sufficient funding in their plan.
Australian Consumer Law Clause
As an NDIS service provider, you must still comply with the Australian Consumer Law (ACL) and other requirements of the Competition and Consumer Act 2010 (Cth). The ACL will apply to disability-related products such as a wheelchair or a mobility aid and services such as disability support.
Under the ACL, a provider must:
- treat customers fairly, including providing remedies when goods and services sold fail to meet the consumer guarantees;
- ensure the agreement does not contain unfair contract terms; and
- compete fairly with other businesses.
For example, where you provide a good such as a wheelchair or mobility aid, if there is a major failure, the customer will then be entitled to:
- cancel the service agreement;
- a refund for the unused portion, or to compensation for its reduced value; and
- be compensated for any other reasonably foreseeable loss or damage.
You must comply with the ACL and ensure that the service agreement does not breach the ACL. If you fail to comply with the ACL, penalties may apply, including financial penalties, compensation orders and non-party consumer redress.
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Unfair Contract Terms
The unfair contract terms laws apply to ‘consumer contracts’ as defined by the ACL. This will cover the service agreement you provide to a customer to provide NDIS services. If a court finds a contract term unfair, the term will be void. This means it is treated as if it never existed. It is crucial to ensure that your service agreement does not contain unfair contract terms.
Recent changes to the laws in Australia have broadened the scope of the unfair contract terms regime and have introduced serious penalties. There is an increase in penalties for all competition and consumer law contraventions, including potential penalties of $50 million for a body corporate and $2.5 million for individuals.
A term of a contract may be unfair if it:
- causes a significant balance between your rights and obligations and those of the consumer arising under the contract;
- is not reasonably necessary to protect the legitimate interests of your business; and
- would cause detriment to the consumer (financial or non-financial) if you tried to enforce it.
If you are located in New South Wales, you also need to comply with the disclosure requirements of terms or conditions of contracts that substantially prejudice the customer. As a business, you must take reasonable steps to make customers aware of ‘substantially prejudicial terms’. For example, this may include requiring the customer to pay an exit fee or be liable for damages to delivered goods. If you do not inform the customer of such terms, penalties can apply to your business. You should ensure that your service agreement has an ‘Our Disclosures’ section highlighting such terms.
Key Takeaways
Before providing NDIS services, it is recommended to have a comprehensive service agreement. Having a service agreement in place will provide more certainty and protection, especially if a dispute arises.
If you need help preparing a service agreement to cover NDIS services, our experienced NDIS lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
It depends. It is generally recommended that you have a service agreement, as an agreement will clearly outline the obligations of both parties and the dispute resolution process if something goes wrong. However, it is only mandatory to have a service agreement if you provide Specialist Disability Accommodation.
Yes, you must still comply with the ACL and other requirements of the Competition and Consumer Act requirements 2010 (Cth). Failure to do so may result in penalties. The consumer guarantees are still relevant if you are providing services or goods related to your NDIS business.
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