The NDIS legislation sets out statutory rights of participants, including to determine their own best interests (s. 4), to engage as equal partners in decisions that will affect their lives to the full extent of their capacity (s. 4), to choose service provider(s) for contracted services, and to pursue any grievance (s. 4). In short, NDIS participants may exercise choice and control over NDIS-funded supports in the pursuit of their goals and the planning and delivery of their supports (s.3(1)(e))   The key document in the relationship between the participant and the service provider is the Service Agreement which sets out the key rights, obligations and duties of each of the parties. One essential clause should provide for a transparent and accountable tiered approach to resolving issues, complaints, disputes and grievances between the parties. This approach requires service providers to have in place an efficient and effective policy framework for resolving disputes under NDIS service agreements – supported by appropriate processes, practices, procedures and controls to maximise the resolution of these disputes – hopefully prevent disputes arising in the first place!

WORKSHOP OBJECTIVES Statutory rights of participants and service providers in resolving disputes under NDIS Negotiating dispute resolution processes with NDIS participants, families and carers Drafting dispute resolution clauses – fundamental elements and examples Modern approaches to resolving issues, complaints, disputes and grievances Sharing tips and traps in effectively and efficiently avoiding and resolving disputes under NDIS service agreements.

Before we start … Differences between a complaint, dispute and grievance? Unreasonable or vexatious complaints? Examples categories of NDIS complaints: Non-delivery or late delivery of agreed services Delivery of poor quality/standard services Inappropriate staff conduct or actions Breach of duty of care e.g. Work Health and Safety laws Negligence – someone being harmed in some way Interpretation of a service agreement clause(s) Interpretation of Participant’s NDIS Plan funded services Importance of a Complaints Policy and Procedure Essential: Commitment to investigate all complaints appropriately

Overview of NDIS legislative framework impacting on service agreements National Disability Insurance Scheme Act 2013 National Disability Insurance Scheme Rules (pursuant to sec. 17 of Act) << NDIS (Registered Providers of Supports) Rule 2013 NDIA’s CEO “Operational Guidelines” (pursuant to a Rule under the Act) << Operational Guideline – Registered Providers of Supports and NDIS Terms of Business for Registered Support Providers

Overview of NDIS legislative framework impacting on service agreements NDIS RULES include: Becoming a Participant Children Facilitating the Preparation of Participants’ Plans – Queensland (2016) Nominees Registered Providers of Supports Supports for Participants Plan Management Protection and Disclosure of Information Supports for Participants – Accounting for Compensation Timeframe for Decision Making Risk Management 5

Overview of NDIS legislative framework impacting on service agreements NDIS Act 2013 (Cwth) – sec. 3 – Objects of the Act: (extracts only) Provide reasonable and necessary supports for participants in the NDIS launch (s.3(1)(d)) Enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (s.3(1)(e)) Adopting an insurance-based approach, informed by actuarial analysis, in the provision and funding of supports for people with disability (s.3(2)(b)) In giving effect to the objects of the Act, regard is to be had to … the need to ensure the financial sustainability of the NDIS (s.3(3)(b))

Overview of NDIS legislative framework impacting on service agreements Specifically, participants’ legal rights to pursue any grievance Participant has right to determine their own best interests (s. 4) Participant has right to engage as equal partners in decisions that will affect their lives to the full extent of their capacity (s. 4) Participant chooses service provider(s) for contracted services [rights and obligations under contract law] Participant has right to pursue any grievance (s. 4)

Statutory rights of participants and service providers in resolving disputes under NDIS Service level safeguards: All good businesses and service organisations have internal systems that protect their clients and enable them to provide feedback and make complaints. Service level safeguards include quality frameworks, complaints mechanisms and workforce requirements such as qualifications, recruitment practices and performance standards. For many service providers service level safeguards these will be one of the requirements for registration with the NDIA. System level safeguards: The NDIA will use existing system level safeguards that currently exist to safeguard participants. These include internal and external processes for making complaints, processes to have decisions reviewed by an independent body and statutory powers. (NDIS: Operational Guideline Planning and Assessment – Risk and Safeguards )

Statutory rights of participants and service providers in resolving disputes under NDIS Terms of Business: Requirements for a Service Agreement: HANDOUT Service agreements: It is expected that providers will work with a participant to establish written or verbal agreement about the nature, quality and price of supports to be provided. All supports delivered will be in accordance with that agreement. Such agreements will accord with the National Disability Insurance Scheme Model Agreement and incorporate input from participants including internal management of complaints and cessation of supports. Service agreements need to be consistent with the National Disability Insurance Scheme’s pricing arrangements and guidelines. (Terms of Business p.1) Continued next slide >>

Statutory rights of participants and service providers in resolving disputes under NDIS Terms of Business: Requirements for a Service Agreement: Complaints Providers are to have clear and accessible complaints handling and dispute resolution processes. Records related to complaints are to be maintained for at least 5 years or as required by any other law. All complaints to the National Disability Insurance Agency about a provider will be resolved in accordance with the Complaints Procedure of the National Disability Insurance Agency, …. Terms of Business p.5)

Statutory rights of participants and service providers in resolving disputes under NDIS NDIS Model Service Agreement Payments The Provider will seek payment for their provision of supports after the [Participant / Participant’s representative] confirms satisfactory delivery. (Extracted clause: NDIA Model Service Agreement)

Statutory rights of participants and service providers in resolving disputes under NDIS NDIS Model Service Agreement Feedback, complaints and disputes If the Participant wishes to give the Provider feedback, the Participant can talk to [insert name of Provider’s contact person] on [insert contact details, e.g. phone, email, and/or postal address]. If the Participant is not happy with the provision of supports and wishes to make a complaint, the Participant can talk to [insert name of Provider’s contact person] on [insert contact details, e.g. phone, email, and/or postal address]. If the Participant is not satisfied or does not want to talk to this person, the Participant can contact the National Disability Insurance Agency by calling 1800 800 110, visiting one of their offices in person, or visiting ndis.gov.au for further information. (Extracted clause: NDIA Model Service Agreement)

Negotiating dispute resolution processes with NDIS participants, families and carers Levels of dispute resolution processes Dispute resolution refers to the processes by which disputes are brought to an end. This can occur through: a negotiated outcome, where the parties concerned sort out things themselves a mediated outcome, where the parties use the services of an independent mediator to help them arrive at their own agreement, or an arbitrated or adjudicated outcome, where an independent arbitrator or court determines how the dispute is to be resolved and makes a binding decision or order to this effect. Fair Work Australia Best Practice Guide

Negotiating dispute resolution processes with NDIS participants, families and carers Best practice dispute resolution process Simple to understand and apply Quick – the issues should be resolved quickly rather than allowing them to escalate through inaction or delay Resolve internally - allow appropriate stages so that matters can, wherever possible, be resolved internally Fair – all relevant parties should be consulted so that all sides of the story are taken into account Handled sensitively – disputes resolved in a confidential context Transparent – the policy and procedure is known to all stakeholders Adapted from Fair Work Australia Best Practice Guide

Drafting dispute resolution clauses – fundamental elements and examples Example: Australian Government contracts 27. Dispute resolution 27.1 No arbitration or court proceedings If a dispute arises in relation to the conduct of this Contract (Dispute), a party must comply with this clause 27 before starting arbitration or court proceedings (except proceedings for urgent interlocutory relief). After a party has sought or obtained any urgent interlocutory relief that party must follow this clause 27. 27.2 Notification A party claiming a Dispute has arisen must give the other parties to the Dispute notice setting out details of the Dispute. 27.3 Parties to resolve Dispute During the 14 days after a notice is given under clause 27.2 (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use its reasonable efforts through a meeting of CEOs (or their nominees) to resolve the Dispute. If the parties cannot resolve the Dispute within that period, they must refer the Dispute to a mediator if one of them requests. Continued next slide >>

Drafting dispute resolution clauses – fundamental elements and examples Example: Australian Government contracts (continued) 27.4 Appointment of mediator If the parties to the Dispute cannot agree on a mediator within seven days after a request under clause 27.3, the chairperson of LEADR or the chairperson's nominee will appoint a mediator. 27.5 Role of mediator and obligations of parties The role of a mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a binding decision on a party to the Dispute except if the party agrees in writing. Unless agreed by the mediator and parties, the mediation must be held within 21 days of the request for mediation in clause 27.3. The parties must attend the mediation and act in good faith to genuinely attempt to resolve the Dispute. 27.6 Confidentiality Any information or documents disclosed by a party under this clause 27: (a) must be kept confidential; and (b) may only be used to attempt to resolve the Dispute. Continued next slide >>

Drafting dispute resolution clauses – fundamental elements and examples Example: Australian Government contracts (continued) 27.7 Costs Each party to a Dispute must pay its own costs of complying with this clause 27. The parties to the Dispute must equally pay the costs of any mediator. 27.8 Termination of process A party to a Dispute may terminate the dispute resolution process by giving notice to each other party after it has complied with clauses 27.1 to 27.5. Clauses 27.6 and 27.7 survive termination of the dispute resolution process. 27.9 Breach of this clause If a party to a Dispute breaches clauses 27.1 to 27.8, the other party does not have to comply with those clauses in relation to the Dispute.

Drafting dispute resolution clauses – fundamental elements and examples Example – Simplified clause DISPUTE RESOLUTION If a dispute concerning the terms or intention of this Agreement arises, it must be referred, in the first instance, to the contact representatives for the parties in an attempt to amicably settle the dispute by negotiation. If this process is unsuccessful, the dispute must be referred to mediation before either Party commences any court or arbitration proceedings, other than an injunction. The parties may agree to nominate a mediator at the request of any Party to do so. Failing agreement between the Parties to nominate a mediator, the President of the Institute of Arbitrators and Mediators Australia is to nominate a mediator. Handout: example clauses

Modern approaches to resolving issues, complaints, disputes and grievances Ensure you FULLY understand what the participant/carer/family needs/wants and why. You may then be able respond to their issues, position or concerns in a more effective way. Keep the personalities separate from the “problem” Develop a plan before beginning to negotiate so that you are clear on what you need/want to achieve Set agreed timelines for negotiations and responses. Act promptly !! Allocate clear responsibility and authority to negotiate and resolve disputes Know what you need/want the outcome to be and when you want it Write down points in favour of what you and participant need/want Can you offer alternatives or compromise - accepting something less than your most preferred outcome as a fall-back position? KNOW WHAT YOUR SERVICE AGREEMENT MEANS - Get legal advice if the dispute is complex or you are not sure if you have a legal basis for your position and/or whether to compromise Document agreement on resolution; deliver on what you agree to do !!!

Sharing tips and traps in effectively and efficiently avoiding and resolving disputes under NDIS service agreements. Participant’s Checklist for Service Agreements I know who is making the Agreement. This might be me and my service provider, or it might be my trusted person and my service provider. I know what supports to include. I know what is expected of me. I know what is expected of my service provider. I know how the supports will be paid for. I know what to do if I want to make changes. I know what to do if I want to end the Agreement. I know what to do if I have a problem and I know who to contact. I have written my Service Agreement, or I have worked with my provider to write the Agreement. I have signed the Agreement. I have attached my NDIS Plan to the Agreement if I want to. I have kept a copy of the Agreement for my records. NDIA Guide to Service Agreements - Instructions for participants and service providers p. 28

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