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.
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 2
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.
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 3
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?
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 4
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.
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 5
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.
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 6
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).
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 7
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
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 8
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
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 9
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
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 10
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)
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 11
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)
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 12
EXERCISE (separate handout):
Review of NDIS model Service
Agreement (suggested simplified Service Agreement for
use by participants with providers)
Client Service Agreement – NDIS approach
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 13
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 >>>
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 14
• 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?
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 15
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
NDIS: CLIENT SERVICE AGREEMENTS
Bringing People Together To develop responses to the community’s
needs for transport, access and mobility 16
Final questions?
Thank you
Ken