The Federal Court of Australia has ordered a provider of NDIS services (Valmar Support Services Ltd) pay a record penalty of $1,916,250 plus costs.
HWL Ebsworth acted for the Commissioner of the NDIS Quality & Safeguards Commission in the proceedings against Valmar for contraventions of the NDIS Practice Standards and Code of Conduct.
The proceeding concerned events at a residential group home in the ACT operated by Valmar in the period of 2019 to 2020. Three NDIS Participants, Mr H, Mr K and Mr I all suffered from dysphagia, which meant that they were at risk of choking and required food to be prepared in accordance with their eating and drinking plans. On 14 May 2020 Mr H was provided a toasted sandwich by a Valmar employee. Mr H choked on the sandwich and was hospitalised. He remained unconscious and died in hospital on 17 May 2020 with records stating his cause of death was that he ‘choked on food’.
The Court found that during the relevant period, Valmar did not provide the level of supports they were required to provide which lead to the grave and tragic circumstance of one of the residents passing away.
In its decision, the Court found that Valmar failed to:
- ensure 13 of its staff had training as to how to provide supports to persons with a disability that were at risk of choking;
- audit or supervise compliance with the eating and drinking plans;
- engage a new dietitian for each of the participants; and
- engage a speech pathologist for Mr H.
Her Honour highlighted the importance of adequate training amongst NDIS providers, a total failure of which can result in the most serious of contraventions. The Court described how the NDIS scheme centres around the provision of high-quality support services to allow persons with a disability to exercise their autonomy and be included in the community. Her Honour went on to note that if the workers who are to be provide the high-quality support services receive no training, they will be unable to provide the services, which will result in the whole scheme failing (at [73]).
In her decision, Justice Raper gave further insight to the Court’s approach to affixing penalties, explaining “That the affixing of penalties is not a mathematical exercise. The determination of an appropriate pecuniary penalty is a highly evaluative exercise.” [71] Her Honour went further to explain that the evaluative exercise “involves a consideration of the relevant facts, circumstances and considerations specific to the contravener to determine whether the proposed agreed penalties are within the range of possible appropriate penalties” [72].
The judgment is the third civil penalty decision concerning the NDIS Code of Conduct and Practice Standards, following the matters of Commissioner v Australian Foundation for Disability [2023] FCA 629 (Afford) and Commissioner v LiveBetter Services Ltd [2024] FCA 374 (LiveBetter). HWL Ebsworth Lawyers also acted for the Commissioner in the matter of LiveBetter.
This article was written by Rebecca Jaffe, Partner and Frank Lawrence, Associate.
