Author: SDA Providers President

The NDIA’s SDA Portal was up briefly. But is back to giving the same error.

Thanks to the NDIA’s enrolment team for chasing this up with their IT department and helping out providers in the meantime.

It’s great to have the portal back up again

The NDIA’s Specialist Disability Accommodation portal remains down for the 6th day. No enrolments or responses to information can be completed in this time.

The enrolments team at the NDIA are just as frustrated as providers and although they continue to chase their IT providers is unable to provide a timeframe for when it will be fixed.

The NDIA upgraded the SDA Enrolments Portal last Friday and it has been down since then. You can access it but you cannot sign the declarations to enrol a dwelling or to respond to request for information.

The NDIA IT team are aware of it and are working to fix the problem.

The commission has written to all SDA Providers. The awesome people over at Team DSC have the details of the letter

What Sort of Practices Raise Questions?

The practices below are the sort of things that are very likely to be unlawful, they are unethical and should be stopped:

Exclusive SIL Arrangements

An SDA Property is someone’s home. They get to choose their supports. Having an exclusive SIL agreement breaks many rules

Having a SIL in Place Before There are Participants in The House

As per above, how can it be choice and control if there is already a SIL in please. It makes the SDA provider’s job easier in that they don’t have to find participants, but there are no benefits for the participants.

Financial Incentives from the SIL Provider

Where the SIL provider is providing a financial incentive to the SDA Provider to provide supports in the property

The SDA Provider and the SIL are the Same or Related Organisation

A participant should be able to freely choose their supports.

The SDA Provider Pays Too Much to the Investor

We have seen situations where the SDA Provider is paying an amount equivalent to 100% of the SDA payments/RRC while being responsible for maintenance, repairs, rates, insurance and management. Without even accounting for the vacancy risk they are losing at least 20% on that. This means there must be a financial relationship or benefit to be derived from the supports in the house, otherwise they would go broke.

Valuers would question the commerciality of any fixed lease above 65% of the potential income of the property.

SDA Provider Charging Fees to or for Support Workers

Where the SDA provider is charging a fee to the support workers to be able to provide support in the property or they are charging a fee to the participant to be able to have their support worker get access to the property.

This is an urgent communication following advice given to one of our members by the NDIA in writing. Despite any communication in writing from an agency officer, the onus always remains on an individual to comply with all relevant laws and there is no defence in saying that an agency staff member, officer or otherwise told you that you didn’t have to comply with them.

If you have, or intend to enrol a house that is not a “semi-attached” property the SDA Professionals Association strongly advises members to get expert legal advice as to your possible breaches of the SDA Rules, making of knowingly false declarations etc etc.

NDIA Advising to Enrol a House as Villa

One of our members was advised by the NDIA to enrol a house as Villa so that a provider can claim for an individual living alone in a house at Villa one resident.

Houses Can’t Be a Villa Unless “Semi-Attached”

The NDIS SDA Pricing Arrangements define a Villa as per the extract below (emphasis added)

•Villas, duplexes and townhouses are dwellings for one, two or
three residents.

• Villas, duplexes and townhouses are generally separate but
semi-attached properties within a single land title or strata titled
area.

• Dwellings will be separated by a fire-resisting wall (although fire
resistance is not required for Existing Stock).

• Each villa, duplex or townhouse must have a separate and
reasonably accessible entry to/exit from the property, and
participants must not be able to internally travel between
dwellings. That is, participants must be required to exit one
dwelling in order to enter another. Restricted internal access
between dwellings may be provided for support staff only.

• Villas, duplexes and townhouses may also be ancillary dwellings
that are located on the same parcel of land as another dwelling
(e.g. fully self-contained ‘granny flats’).\

The emphasised term here is “but semi-attached properties“. On both plain English and legal interpretation in order to be able to classify a building as a Villa it must be semi-attached. Therefore a house, by itself, on it’s on block of land which has no semi-attachment to anything else cannot be a Villa.

The above in the Pricing Arrangements are taken directly from the Specialist Disability Accommodation Rules 2020 (Cth) (the Rules). Excert:

The features of a villa, duplex or townhouse are as follows:
(a) it has 3 or less residents;
(b) it is a semi-attached property within a single land title or strata titled area;
(c) it is separated from other villas, duplexes or townhouses by a fire-resistant wall (not required
for existing stock);
(d) it has a separate and reasonably accessible entry;
(e) the residents are not able to internally travel between dwellings (restricted internal access
between dwellings may exist for support staff only);
(f) it may be an ancillary dwelling that is located on the same parcel of land as another dwelling (e.g. a
fully self-contained granny flat).

It is clear from the Rules at Schedule 2 (b) that it must be a “semi-attached” property. Again, enrolling a house that is not semi-attached would mean a provider is in breach of the rules.

When Enrolling a Dwelling SDA Providers Must Make a Declaration

When enrolling a dwelling an SDA Provider must make a declaration to various things, including that

the dwelling meets all relevant building codes, standards and laws that are applicable to the dwelling; and

This would include the definitions of the building type as per the SDA Pricing Arrangements.

Further the Rules at 29 provide that:

An SDA provider must notify the CEO, in writing, if any of the following events
occur in relation to an enrolled dwelling of the provider:
(a) there is a change in the SDA design category or SDA building type of the dwelling;
(b) the dwelling is no longer suitable to be used for specialist disability accommodation;
(c) circumstances arise that are likely to change the SDA design category, SDA building type or the suitability of the dwelling for providing specialist disability accommodation;

The Rules also provide at 30 that

(1) An SDA provider must, if requested by the CEO, arrange for another person to certify that the information and matters provided at the time of enrolment for a dwelling continue to apply to the dwelling.
(2) The CEO may make the request by giving notice to the provider in writing.
(3) The notice must specify:
(a) requirements relating to the qualifications and independence of the person that is to undertake the certification; and
(b) the period within which the certification must be given to the CEO.

It would appear to be impossible to comply with this rule if a house was enrolled as a Villa

At Rule 34

34 Additional criteria for approval of registered providers of supports

(1) For the purposes of paragraph 70(1)(d) of the Act, the criteria mentioned in subsection (2) must be met by an applicant that has applied to be a registered provider of supports if that applicant is to provide specialist disability accommodation to one or more eligible participants.
(2) The applicant has declared, in writing, that:
(a) it will comply with, and has mechanisms in place to ensure compliance with, all applicable laws that relate to disability accommodation (including laws relating to building standards and tenancy arrangements); and
(b) it has mechanisms in place to ensure that all employees, contractors or other persons engaged by the applicant will comply with all applicable laws that relate to specialist disability accommodation.

Enrolling a house that is not semi-attached will mean the provider has breached the above rule.

Expert Legal Advice on Your Specific Circumstances Needed

We recommend that members do not enrol a house or any property that is not “semi-attached” as a Villa/Duplex/Townhouse building type without getting expert legal advice about the specific dwelling, any possible implications and penalties you may be subject to.