Edited version of private advice

Authorisation Number: 1051521861893

Date of advice: 30 May 2019

Ruling

Subject: GST and services provided under the national disability insurance scheme (NDIS)

Question

Is your supply of a Fitness program provided to NDIS participants a GST-free supply under section 38-38 of A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

No, your supply of the Fitness program is not a GST-free supply under section 38-38 of the GST Act.

This ruling applies:

On and from its date of issue

Relevant facts and circumstances

You are registered for GST.

You supply a Fitness program (services) to NDIS participants.

Every NDIS participant that you supply services to has a NDIS plan in effect. The supply of services you make is listed as a supply of reasonable and necessary supports in the statement of supports in the participant's NDIS plan.

You have a written agreement with each of the NDIS participants that you provide services to.

Each Fitness program is initially for a period set number of weeks when agreement will be reviewed at the discretion of the participant.

Under the agreement with the NDIS participants you agree to provide the participant the support in the form of a Fitness program over a number of sessions.

The sessions under the program are delivered in a mainstream gym. It can also include other sessions in between the program start and end dates as requested by a participant on a casual basis.

At the end of each program, you will provide a report to review participant's fitness progress, the achievement of goals and how to move forward.

Each session is delivered by a fully qualified insured Health Coach.

The agreement states that for the purposes of the GST legislation, the parties confirm that:

·  A supply of supports under this agreement is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in the participant's NDIS plan currently in effect under section 37 of the NDIS Act

·  The participant's NDIS plan is expected to remain in effect during the period the supports are provided; and

·  The participant will immediately notify you if the participant's NDIS Plan is replaced by a new plan or the participant stops being a participant in the NDIS.

The aim of the program is to assist people with disabilities achieve their health & wellbeing goals whilst participating in the mainstream community.

Goals can include losing weight, increasing muscle tone, improving body mobility, increasing their level of independence as they get older.

Goals are varied and specific to each participant's needs and desires. Unlike many disability services, your service is provided in a mainstream gym as opposed to a day program or facility specifically built for people with disability. This is an important part of your service as it allows your participants to integrate into the mainstream society accompanied by their health coach.

In each program you track various indicators such as weight, exercise progression, girth measurements, nutritional habits, behaviour - mood pre and post exercise and how well they adapt into a mainstream gym environment.

On how the program runs you provided the following information:

A new participant is taken through screening & goals assessment session. In this session your head Health Coach analyses their physical abilities and communication skills to determine what type of program needs to be created for them. They then look at the participants NDIS Plan, review their health & community participation goals to ensure they match the goals of the program.

The information gathered is then used to create a specific program designed to help participants achieve their goals.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 (GST Act)

section 38-38

Reasons for decision

Under section 38-38 of the GST Act, a supply is GST-free if the supply:

·  is a supply to a participant (within the meaning of the National Disability Insurance Scheme Act 2013 ) for whom a participant's plan is in effect under section 37 of that Act; and

·  is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of that Act, in the participant's plan; and

·  is made under a written agreement, between the supplier and the participant or another person, that:

·   identifies the participant; and

·   states that the supply is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of that Act, in the participant's plan; and

·  is of a kind that the Disability Services Minister has determined in writing.

On the facts provided, your supply to NDIS participants is a supply to a participant that has a plan in effect under section 37 of the National Disability Insurance Scheme Act 2013. It is a supply of one or more reasonable and necessary supports specified in the participant's plan and is made under a written agreement between the supplier and the participant, and the written agreement identifies the participant and states that the supply is a supply of one or more of the reasonable or necessary supports.

For the supply of the Fitness program to be GST-free, it also needs to be established that the supply of the program is of a kind of a supply that the Disability Services Minister has determined in writing. The relevant Determination is the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (Determination). The Determination applies to supplies made on or after 1 July 2017 but before 1 July 2021.

Schedule 1 of the Determination specifies that subject to meeting the other requirements in section 38-38 the following supports will be GST-free.

Schedule 1-Supplies of supports that are GST-free*

Schedule 2 of the Determination specifies the supplies that are GST-free if they are also listed in other determinations. In Schedule 2 the supplies of supports will be GST-free where they meet the other requirements under section 38-38 and they are also listed in any of the following:

·  Schedule 1 to the GST-free Supply (Care) Determination 2017;

·  section 6 of the A New Tax System (Goods and Services Tax) (GST free Supply-Residential Care-Government Funded Supplier) Determination 2015;

·  sections 6 or 7 of the GST-free Supply (Health Services) Determination 2017; or

·  such later replacement determination from time to time that has been made for the purposes of sections 38-15, 38-25 and 38-30 of the Act.

Schedule 2 - Supplies of supports that are GST-free if they are listed in other determinations

On the basis of the facts provided, your supply of the Fitness program to NDIS participants is not a supply of supports that are covered by any of the items under either Schedule 1 or Schedule 2 of the Determination.

While Item 2 in Schedule 2 appears relevant in your circumstances, the supplies in Schedule 2 are only GST-free if they are also listed in any of the determinations specified above Schedule 2. On examination of those determinations, none of them cover the types of supplies you provide.

As a result, your supply of the Fitness program is not a GST-free supply under section 38-38 of the GST Act. Further, your supply is not GST-free under any other provisions under the GST Act.

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