SDA Pricing Review – IL & FA Participants Big Winners

The big winners from the SDA Pricing Review are Improved Liveability and Fully Accessible level participants.

IL & FA Funding High Enough to Live in HPS SDA

IL & FA funding has increased enough that participants at this level should be able to live in most High Physical Support Dwellings, that is SDA providers should accept residents at these funding levels.

Single SDA Resident Housing – Great Result

Appendix H deals with this and the funding is now there for participants to live with their families in a 3 resident house.

Robust Single Resident Villa the Loser

Robust single resident villas have not increased sufficiently to make them viable.

SDA Portal Remains Down

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.

NDIS Quality and Safeguards Commission Turns Their Attention to SDA Providers – Let’s Hope They Go Hard

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.

Urgent – DO NOT Enrol Houses as Villas

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

• 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.

Things Like the Recent OOA Debacle Can’t Happen Again if SDA is to have Sufficient Supply

One of the key requirements to attract sufficient supply of SDA to meet the needs of NDIS participants is for investors to be comfortable that it is a stable long term investment. This was highlighted by the agency as being important as recently as the SDA Pricing Review submission questions.

Firstly, let us clearly state that our members generally have a great working relationship with the NDIA. Not only that, we firmly believe that agency staff have what they believe are the best interests of participants at heart. However, agency staff by the nature of their roles simply do not get the first hand real life daily exposure to SDA participants that SDA professionals get. Further, where there are decisions made without basis, and/or that will have a detrimental outcome for participants, then we will go all the way to the highest courts in the land to advocate for them.

What Happened

On 11 November 2022 SDA Assessors were provided with an update that stated that the December 2021 update that had stated Studio Apartments were suitable as an OOA was in fact a typo, it was meant to say Studio apartments were not suitable as an OOA.

Note that our SDA Provider members did not receive the above update.

There was initially some assertions that SDA Assessors could reach out if this change, that was slated to come into effect immediately, and then retrospectively for any that hadn’t had design certification prior to December 2021.

Having a change come into effect with no notice is appalling for confidence, having it be made retrospectively is absurd.

This is exacerbated by the fact that the SDA Assessors don’t have any legislative authority, changes need to occur at the Legislative or SDA Design Guidelines basis, but the NDIA’s position was that this was law. Several of our members experienced this in enrolments occurring before the backflip, and had the NDIA not backflipped, would have had to appeal a decision that had no authority to be made in the first place. Several members have asked the NDIA for what legislative basis would apply here, some on several occasions, but those questions have never been answered in the replies given, primarily we would guess because there simple wasn’t any.

Luckily there was a backflip on 13 December 2022 with no changes coming in to effect until the SDA Design Guidelines. SDA Professionals have asked to be able to make submissions to this.

Decisions Need to Have a Basis

Firstly, the agency must ensure that decisions have a legislative basis. SDA Professionals work within the legislative basis provided, if decisions are made without a basis then the chance that the agency will have to waste precious resources defending appeals against decisions that they have no chance of winnning.

Changes to Design Standards Need Development Industry Type Lead Times

Property development takes time, SDA often takes even longer. Any changes to Apartments or other developments requiring planning approval should have at least an 18 month lead time in order to not require costly changes to applications. Any changes to those not requiring planning approvals should have at least 12 months lead times.