NDIS: CLIENT SERVICE AGREEMENTS - tdsa.org.au · NDIS: CLIENT SERVICE AGREEMENTS Bringing People...

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NDIS: CLIENT SERVICE AGREEMENTS Bringing People Together To develop responses to the community’s needs for transport, access and mobility 1 The Federal Government’s NDIS interstate trials are proving to raise significant issues and challenges for service providers, including the critical need for the client service agreements to specify clearly at least what, how and when services will be performed. With impending launch sites in Queensland to commence in July 2016, it is timely to develop a sound understanding of client service agreements under NDIS. For service providers, a key element in being successful and sustainable in attracting and implementing participants’ NDIS funded support plans is to identify and clearly specify the nature and extent of what is (and what is not) included in the services that clients’ purchase for the NDIA fixed-price. Lessons from the interstate trial sites are shared in this THINK TANK.

Transcript of NDIS: CLIENT SERVICE AGREEMENTS - tdsa.org.au · NDIS: CLIENT SERVICE AGREEMENTS Bringing People...

Page 1: NDIS: CLIENT SERVICE AGREEMENTS - tdsa.org.au · NDIS: CLIENT SERVICE AGREEMENTS Bringing People Together To develop responses to the community’s needs for transport, access and

NDIS: CLIENT SERVICE AGREEMENTS

Bringing People Together To develop responses to the community’s

needs for transport, access and mobility 1

The Federal Government’s NDIS interstate trials are proving to raise

significant issues and challenges for service providers, including the

critical need for the client service agreements to specify clearly at

least what, how and when services will be performed. With impending

launch sites in Queensland to commence in July 2016, it is timely to

develop a sound understanding of client service agreements under

NDIS.

For service providers, a key element in being successful and

sustainable in attracting and implementing participants’ NDIS funded

support plans is to identify and clearly specify the nature and extent of

what is (and what is not) included in the services that clients’ purchase

for the NDIA fixed-price.

Lessons from the interstate trial sites are shared in this THINK TANK.

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WORKSHOP OBJECTIVES

Essential elements in contract law;

How to draft terms and conditions of legal Client

Service Agreements;

Tips and traps in using standard templates and

clauses; and

How parties’ rights and obligations under Client

Service Agreements are managed and enforced.

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WHY ARE CLIENT SERVICE AGREEMENTS

IMPORTANT?

Gives a context to interpreting the contractual relationship

Protects legal rights/obligations of all parties - fairness

Documents exactly what services are being provided

Explicitly records agreement on key conditions such as :

Timeframes

Payment for satisfactory delivery of services

Required level of service quality

Procedure for resolving disputes

Protects confidential information

Process vary the agreement

When and how the agreement can be terminated

Any special terms or conditions

Other reasons why important?

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ARE WRITTEN SERVICE AGREEMENTS ESSENTIAL?

“An oral agreement is a binding contract unless the law requires a written

contract. Contracts relating to the purchase of land, credit and insurance, and

contracts of guarantee and door-to-door sales are a few examples of where

written contracts are required before the agreements are binding.” – Queensland

Law Handbook

“You will normally need to make a written agreement with your provider(s)

that sets out what supports will be provided and how they will be delivered.” NDIA Guide “Making A Service Agreement With Your Provider(s)”

“A participant who chooses to engage someone to provide supports under

an NDIS plan will generally enter into a written agreement with the provider (a

Service Agreement).” NDIA Guide “Making A Service Agreement With A Participant”

As a general rule, parties are bound by all terms contained in a document

that they sign, regardless of whether they have read them or understood

them.

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1. Intention to create legal relationships

Intention that promises will create legally enforceable

obligations

2. Legal capacity to contract

3. Genuine consent

4. Offer and Acceptance

5. Consideration

Something of value passing from one party to the other

in return for a promise to do something

6. Legality of purpose

Essential elements in contract law

CONTRACT: agreement containing promises between 2 or more

parties with intention of creating legal rights and obligations that are

legally enforceable.

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Essential elements in contract law

1. INTENTION TO CREATE LEGAL RELATIONSHIPS

Unless expressly stated otherwise -

• Business and commercial agreements generally presumed

to intend legal rights and obligations – onus on plaintiff to

prove otherwise

• Social and domestic arrangements generally presumed to

be private and not intended to create legal rights and

obligations – onus on plaintiff to prove otherwise (e.g.

consequences of the promise were serious – Riches v

Hogben (1986) 1 QdR 315; Wakeling v Ripley (1951)

SR(NSW) 183).

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Essential elements in contract law

2. LEGAL CAPACITY TO CONTRACT

• Under 18 years of age : valid for necessaries of life or beneficial contracts of

service; voidable where it can be repudiated before or soon after majority age.

(SEPARATE HANDOUT ON CHILDREN AS NDIS PARTICIPANTS)

• Persons under legal guardianship: protect the rights and interests of adults

who have impaired capacity; Public Guardian or other person with legal rights

as substituted decision-maker.

• Persons acting through agents/attorneys: valid within terms of Power of

Attorney or authority of agent under agency law.

• Bankrupts: have limited contractual capacity under Bankruptcy Act

• Cognitive impairment, mental unsoundness or intoxication: impaired

cognitive impairment; incapable of understanding nature of agreement; other

party knew/ought to known; voidable; onus on plaintiff (SEPARATE HANDOUT

ON LEGAL CAPACITY OF PERSONS WITH DISABILITY)

• Corporate bodies: generally same contracting capacity as natural persons

• Crown: generally same capacity as natural persons

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Essential elements in contract law

3. GENUINE CONSENT

• Unconscionable conduct: conduct which should not be done in good

conscience; more than simply unfair or harsh – it must have an element of

bad conscience

• Duress: use of threats, violence or intimidation

• Undue influence: improper use of position, influence or power; onus on

plaintiff

• Common mistake: involves existence or identity of the subject agreement

• Mutual mistake: parties are at cross-purposes

• Unilateral mistake: the other party knows or reasonably ought to know

mistake and does nothing to correct it

• Misrepresentation: statement of fact inducing making of contract:

innocent v negligent v fraudulent

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Essential elements in contract law

4. OFFER AND ACCEPTANCE

• Meeting of the minds: offer by one party and acceptance of that offer

by another party

• Offer: constituted and communicated by words, writing, actions; offer v

invitation to treat; representations that induce person to enter into

contract v mere puff; implied terms (e.g. fitness for purpose; reasonable

care and skill; custom, usage, statue)

• Revocable: at any time up to acceptance

• Counter-offers: are not acceptance of the original offer

• Acceptance: must be strictly in accordance with the terms of the offer,

clear, certain and communicated

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Essential elements in contract law

5. CONSIDERATION

• Must be definite: something of value passing from one

party to the other in return for a promise to do something

• Must have value: left to parties to bargain what is

adequate

• Certain agreements without consideration: Executed as a

Deed (Signed, Sealed and Delivered)

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Essential elements in contract law

6. LEGALITY OF PURPOSE

• Presumption of legality

• Illegal by statute law: e.g. agreement to commit a crime

• Illegal at common law: e.g. agreement to commit a tort

• Against public policy or safety: e.g. tend to promote

corruption in public office

• Unconscionable conduct (SEPARATE HANDOUT)

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EXERCISE (separate handout):

Review of NDIS model Service

Agreement (suggested simplified Service Agreement for

use by participants with providers)

Client Service Agreement – NDIS approach

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Tips and Traps: standard template and any additional clauses

• Document Title

• Date agreement is made (executed) and term (start/end)

• Parties (legal names; addresses; short title – Participant and

Provider)

• Preamble/recitals/background

• Terms and Conditions

• Offer and acceptance*

• Consideration

• Termination for cause*

• Responsibilities/duties each party

• Indemnities and Liabilities*

• Non-assignment*

• Payment for services (invoicing; direct debit;

deposits?)

• GST CONTINUED NEXT SLIDE >>>

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• Amendments to the agreement

• Dispute resolution*

• Remedies

• Obligations that survive termination*

• Authorised contacts

• Notices and communications

• Entire agreement*

• Exercise of own judgement on advice*

• Force Majeure*

• Execute additional documents and perform acts*

• Applicable law*

• Definitions/Interpretation*

• Execution/signature clauses (WHO SIGNING? including

execution under a Power of Attorney*)

• Schedules and Appendices

Tips and Traps: standard template and any additional clauses

Other clauses?

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Managing and enforcing parties’ rights and obligations

under Client Service Agreements

Ensure the CSA is clear, concise and written/signed – and

known/understood/used by all parties/staff – amend if circumstances

change

Contemporaneous notes of meetings - contract performance feedback,

complaints addressed and remedial actions documented

Give/receive early warning of potential/escalating disputes – get facts,

consider options, make decisions, document considerations/actions

Formal written warning notices of potential/actual breach of contract –

facts, causal factors, remedies required to resolve, consequences if not

resolved, set timeframe for action to address; provide natural justice to

respond

If appropriate seek legal advice – (complex, severe consequences, set

precedent )

Try to avoid legal enforcement in Tribunals or Courts – expensive

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Final questions?

Thank you

Ken