Edited version of your written advice

Authorisation Number: 1051319164929

Date of advice: 13 December 2017

Ruling

Subject: Disability supports and GST

Question

Are the supplies of disability supports to the National Disability Insurance Scheme (NDIS) participants GST-free under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes, the supplies of disability supports to the NDIS participants are GST-free under section 38-38 of the GST Act where they are of a kind covered by GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (the Determination). Refer to Reasons for Decisions below for full consideration of different service categories and their explanation.

Where the disability support service is not GST-free under 38-38 of the GST Act, in some circumstances they may be GST-free under another provision in Subdivision 38-B of the GST Act.

Relevant facts and circumstances

You are registered for GST and have an ABN.

You provide disability support services to your clients who are NDIS participants.

Your clients have agreements with NDIS and you have a Service Agreement with each of your clients.

Clients’ Service Agreements specify their individual needs.

Clients that are self-managed and paid by the department directly; you send your invoice directly to the client which they pay. You do not charge GST.

For your other clients you claim on their behalf through the NDIS portal.

Tax invoices are automatically created for the participants through the NDIS portal when claims are made.

You have provided a sample NDIS Service Agreement that you enter into with your clients.

The agreement states that it is made for the purpose of providing support under the Participant’s NDIS Plan.

You (service provider) agree to provide the Participants with the Supports and at the cost shown at Attachment 2 to the Agreement (Schedule of Supports).

In Clause 7, the Service Agreement States that for the purposes of the GST legislation the parties to the agreement confirm that:

7.1 A supply of supports under this Service Agreement is a supply of one or more reasonable and necessary supports in the statement included, under sub-section 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.

You have provided a summary of services that you supply to participants (depending on their individual needs) and these include:

● Gardening services-which include mowing lawns, hedge trimming, weeding, mulching, planting, tree-lopping, tree removal etc.

● In-Home support services-which include washing clothes, cleaning bathrooms, mop floors, dusting, food preparation, cooking of meals etc.

● Budgeting-which includes weekly budgets, plan weekly meals, purchase ingredients, maintain financial records etc.

● Maintenance-which includes painting, tiling, plumbing, welding, drilling, fencing, truck driving, changing light bulbs etc.

● Activities-which include day trips, fishing trips, sailing club, music events, camping trips etc.

● Personal Care-which includes showering, clothing, personal hygiene generally, driving to medical appointments etc.

● Administration-which includes maintaining client file notes, assistance with client’s mail, bill paying, reporting monthly figures to NDIS, phone calls on behalf of clients, etc.

These are not all of the services that you provide and other services may be provided depending on participants’ needs.

Relevant legislative provisions

Section 38-38 of the GST Act

Reasons for decision

Section 38-38 of the GST Act deals with disability support provided to NDIS participants.

For a supply to an NDIS participant to be GST-free under section 38-38 of the GST Act, the supply must be:

● to a participant for whom a plan is in effect under section 37 of the National Disability Insurance Scheme Act 2013 (NDIS Act) - which means that the plan must be approved by the National Disability Insurance Agency (NDIA);and

● of one or more of the reasonable and necessary supports specified in the statement of supports in the plan; and

● made under a written agreement, between the supplier and the participant (or another person), that:

● identifies the participant; and

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

● of a kind determined in a legislative instrument by the Minister responsible for Disability Services.

The GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (the Determination) lists the kinds of supplies to a NDIS participant that are GST-free where the supply meets the other conditions in section 38-38 of the GST Act (listed above).

You meet the first 3 requirements under section 38-38 when providing services to an NDIS participant; however for the services to be GST-free consideration needs to be given to whether your services are specified in the Determination.

The GST treatment of your services is explained below:

Gardening Services

Gardening services you provide include for example moving lawns, hedge trimming, weeding, mulching, planting, tree-lopping, tree removal. It is considered that Gardening services will be GST-free under section 38-38 of the GST Act as they fall under Schedule 1 Item 3 of the Determination titled ‘Household tasks’. Explanatory statement to the Determination provides examples of ‘Household tasks’ that are intended to be covered by the Determination. One of those examples is house and/or yard maintenance which includes performing essential house and or yard activities that the participant is not able to undertake. As a result, gardening services that fall in this category will be GST-free under section 38-38 of the GST Act.

In-Home support

In-Home support services you provide include for example washing clothes, cleaning bathrooms, mop floors, dusting, food preparation, cooking of meals. It is considered that in-home support services will be GST-free under section 38-38 as they fall under Schedule 1 Item 3 of the Determination titled ‘Household tasks’. Explanatory statement to the Determination provides examples of Household tasks that are intended to be covered by the Determination. House cleaning and linen services are listed as examples of services intended to be covered by the Determination. House cleaning is intended to cover performing essential house cleaning activities that the participant is not able to undertake. As a result, in-some support services that fall in this category will be GST-free under section 38-38 of the GST Act.

Budgeting

Budgeting support services you provide include for example weekly budgets, plan weekly meals, purchase ingredients, maintain financial records. Budgeting services will be GST-free under section 38-38 if they fall under either Schedule 1 Item 9 ‘Management of funding supports in a participant’s plan, and/or Schedule 2 Item 1 ‘Assistance with daily personal activities’ of the Determination.

Types of services that are relevant for Item 9 in Schedule 1 are those that relate to the management and maintenance of supports in a participant’s plan. As a result, services that you provide that are supports in relation to financial management of supports in a participant’s plan will be GST-free services.

Item 1 ‘Assistance with daily personal activities’ of Schedule 2 includes various types of services that would be GST-free. One of those types of services is Assistance with household tasks which include providing assistance to the participant to manage their budget. However, Schedule 2 is restricted to those services that are also listed in other Determinations. Of relevance is Schedule 1 to the GST-free Supply (Care) Determination 2017. That determination lists ‘Home help’ as one of the services.

As a result, where the services provided include assisting the participants to manage their budget within the parameters of either Item 9 in Schedule 1 or Item 1 of Schedule 2, those services will be GST-free services.

Maintenance

Maintenance services you provide include for example painting, tiling, plumbing, welding, drilling, fencing, truck driving, changing light bulbs.

Maintenance services will be GST-free under section 38-38 of the GST Act if they fall under either Schedule 1 Item 3 ‘Household tasks, and/or Schedule 2 Item 5 ‘Home modifications’ of the Determination.

Types of services that are relevant for Item 3 in Schedule 1 are those that are relate to performing of the necessary house and/or yard maintenance that participant is not able to undertake. As a result, services provided that relate to performing necessary house or yard maintenance that the participant is not able to undertake are the types of services that will be GST-free services.

Item 5 ‘Home modification’ of Schedule 2, includes various types of services that would be GST-free. Home modification is intended to capture modifications that improve access and/or enable the person to disability to access and use. For example modifications to a kitchen to enable a person with disability to bathroom, modifications to laundry, bedroom, kitchen etc to enable a person with disability to access and use it, ramps for access, services provided by project manager or building certifier to ensure compliance, services provided by the builder employed to implement modifications. However, Schedule 2 is restricted to those services that are also listed in other Determinations. Of relevance to your scenario is Schedule 1 to the GST-free Supply (Care) Determination 2017. That determination lists at Item 4 ‘Home modification’ as one of the services.

As a result, where the maintenance services provided are captured under Item 3 of Schedule 1 and/or Item 5 of Schedule 2, those services will be GST-free services.

Maintenance services listed such as bob-cat driving, forklift, truck driving, motor bike, speed boat driving, are not the types of support services that are envisaged to fall under either of the Items listed above and as a result would not be GST-free.

Activities

You provide support services with various Activities which for example include day trips, fishing trips, sailing club, community trips, music events, camping trips, employment services.

Services in relation to Activities will be GST-free under section 38-38 of the GST Act if they fall under Item 4, Item 2 and/or Item 6 of Schedule 1 and/or Item 2 of Schedule 2.

Types of services that are GST-free under Item 2 ‘Assistance in coordinating or managing life stages, transitions and supports, including daily tasks in a group or shared living arrangement’ ‘ are ‘mentoring and peer support services. The types of supports covered under this item include assistance within the home or community to attend appointments, shopping, bill paying, social activities, maintaining social contact with others.

Types of services that are GST-free under Item 4 ‘Assistance with and training in travel/transport arrangements, excluding taxi fares’ of Schedule 1 are limited to transport services required to get a person with disability to school, educational facility, employment and/or community and it is only in situations where the person is unable to travel by other means due to their disability. It also includes fares for specialised accessible transport as well as training services in the use of public transport, as well as training in driving using adapted equipment or vehicle modification by a Driver Trained Occupational Therapist.

Types of services that are GST-free under Item 6 ‘Assistance to access and maintain education and employment’ of Schedule 1 are listed as:

● Assistance to participate in educational activities-Assistance to participate in educational activities due to the impact of the person’s disability.

● Personal assistance to support educational activities-Personal assistance with self-care in an educational setting.

● Transition from school to further education-Provision of skills training, advice, assistance with arrangements, orientation to assist a person with disability moving from school to further education.

● Transition to school - program design, planning and implementation-Specialised assistance in planning and transitioning to school.

● Assistance to transition from school to work-Provision of skills training, advice, assistance with arrangements, orientation to assist a person with disability moving from school to work.

● On the job training and support in the open labour market -Training and support in the workplace required due to the person’s disability and where the support is not provided by the employer or employment programs.

● Specialised assistance to gain employment in the open labour market-Additional assistance required by a person with disability because of their disability in order to obtain a job.

● Specific disability related employment readiness training-Training required due to the person’s disability that assists the participant to be ready for employment.

● Assistance in specialised (supported) employment (hourly rate)-Specialised assistance in a supported employment environment.

● Participation in a supported employment program -Work in place of employment with tasks specifically set up for people with disabilities.

Types of services that can be GST-free under Item 2 ‘Specialised assessment and development of daily life and life skills, including community participation’ of Schedule 2 lists various assistance in relation to access to community, social and recreational activities. However these are limited to activities/services provided in a day care centre or to a resident of a residential care facility and do not appear relevant to your situation on the basis of the facts provided.

As a result, only those services listed under ‘Activities’ that are captured under Item 2, 4and/or 6 of Schedule 1 will be GST-free.

‘activities’ which include daily trips to the Zoo, Fishing trips, Sailing club, Islands, Camping trips, Agricultural shows, Music events, Garden Exhibitions, Theatre, Holidays overseas, weekly holidays, day trips and sporting events, would not be the types of disability supports that are intended to be covered under either Item 2, 4 and/or 6 of Schedule 1 and as a result would generally not be GST-free unless they are related to one of the specific items listed.

Personal Care

Personal care services you provide include for example showering, clothing, personal hygiene generally, driving to medical appointments.

Personal care services will be GST-free under section 38-38 of the GST Act if they fall under Item 1 of Schedule 2 of the Determination.

Item 1 ‘Assistance with daily personal activities’ lists active overnight assistance with self-care as well as assistance with self-care activities (provided at all other times) which includes assisting with, and/or supervising, personal tasks to daily life to develop skills of the participant to live as autonomously as possible.

However, Schedule 2 is restricted to those services that are also listed in other Determinations. Of relevance to your scenario is Schedule 1 to the GST-free Supply (Care) Determination 2017. That determination lists at Item 2 ‘Personal Care’ as one of the relevant services.

As a result, personal care services that fall under Item 1 of Schedule 2 will be GST-free services. However, we do not consider that travel items listed by you are relevant in this category and as a result would not be captured under Item 1 of Schedule 2. For travel assistance provided please refer to ‘Activities’ for explanation of types of travel that are intended to be GST-free.

Administration

Administration services you provide include for example maintaining client file notes, assistance with client’s mail, bill paying, reporting monthly figures to NDIS, phone calls on behalf of clients.

Administration services will be GST-free under section 38-38 if they fall under Item 9 ‘Management of funding supports in a participant’s plan’ of Schedule 1 as well as Item 1 ‘Assistance with daily personal activities’ of Schedule 2 of the Determination.

Types of services that are relevant for Item 9 in Schedule 1 are those that relate to the managements and maintenance of supports in a participant’s plan. As a result, services that you provide that are supports in relation to financial management of supports in a participant’s plan will be GST-free services.

Item 1 ‘Assistance with daily personal activities’ of Schedule 2, includes various types of services that would be GST-free. One of those types of services is Assistance with household tasks which include providing assistance to the participant in relation to personal communication. However, Schedule 2 is restricted to those services that are also listed in other Determinations. Of relevance to your scenario is Schedule 1 to the GST-free Supply (Care) Determination 2017. That determination lists ‘Home help’ as one of the services.

As a result, where the administration services are within either Item 9 in Schedule 1 or Item 1 of Schedule 2 of the Determination, those services will be GST-free services.