As an NDIS service provider providing accommodation, if you only execute a service contract with a participant, and not also a separate tenancy agreement, you may find that you have fallen into an entirely new regulated scheme with expanded obligations, and that your rights to terminate and obtain vacant possession are limited.
Recent decisions
The South Australian Civil and Administrative Tribunal has just issued a decision, referencing a South Australian Magistrates Court decision earlier this year, ruling that where a tenancy agreement is embedded into an NDIS service contract, section 5 of the Residential Tenancies Act 1995 (SA) reads that the Act does not apply, on the basis that the Act does not apply to:
“(a) an agreement giving a right of occupancy in—
…
(vi) a supported residential facility within the meaning of the Supported Residential Facilities Act 1992;”
A supported residential facility in the Supported Residential Facilities Act is defined as follows:
“supported residential facility or facility means premises at which, for monetary or other consideration (but whether or not for profit), residential accommodation is provided or offered together with personal care services (other than for members of the immediate family of the proprietor of the facility).”
The Tribunal noted that if the tenancy agreement was a separate document to the service contract, the tenancy agreement could be considered by the Tribunal to be subject to the Residential Tenancies Act rather than the Supported Residential Facilities Act.
Consequences and implications
Under the Supported Residential Facilities Act, a provider must apply for and obtain a licence from the relevant licensing authority (usually from the local Council, or from the Minister for Human Services). To obtain a licence, the applicant needs to satisfy the licensing that every person in a position to control or significantly influence the affairs of the applicant is a fit and proper person, and provide other information about the applicant, their operations and the premises as well.
A fee is payable for the first application ($548.50) and for the renewal every 2 years ($452), and for any inspection the licensing authority requires ($233).
The licence may come with conditions, and the provider must comply with the legislation broadly as well as other relevant legislation (such as NDIS legislation).
The tenancy agreement must be in a prescribed form, with prescribed terms.
Residents have particular rights under the Act, distinct from a tenant’s rights under the Residential Tenancies Act.
The process of termination of a tenancy agreement under this Act is different to the processes under the Residential Tenancies Act.
Final notes
SACAT and Magistrates Court decisions are non-binding on other Courts, but this appears to be indicative of the approach of the judicature in relation to these matters in South Australia.
You may be subject to the Supported Residential Facilities Act without knowing it. Without clear direction from the Tribunal in relation to any specific arrangement, it may be difficult to know whether to comply with the Supported Residential Facilities Act, the Residential Tenancies Act, or both. In order to reduce the risk of being subject to multiple regulatory schemes, it is imperative to keep service contracts and tenancy agreements separate.
In Victoria, NDIS accommodation is expressly referenced in the Residential Tenancies Act 1997 (Vic), preventing a similar sort of danger from emerging in that jurisdiction.
If you would like to know more about requirements for service contracts and tenancy agreements for NDIS accommodation, please read the article published last year here.
If you need advice regarding the preparation or operation of service contracts and tenancy agreements, please contact William Rees at william.rees@dwft.au.
