Edited version of private advice

Authorisation Number: 1052124555180

Date of advice: 31 May 2023

Ruling

Subject: GST - national disability insurance scheme

Question 1

Is your supply of services in-person as a support worker to NDIS participants in XXX GST-free under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes, your supply of information technology support to a NDIS funded participant in-person are GST-free under section 38-38 of the GST Act provided the supports provided the NDIS participant has a NDIS plan in effect, and the supply is of reasonable and necessary support that are specified in the statement of supports in the participant's NDIS plan, and there is a written agreement between you and the NDIS participant, and it is a supply covered by one of the tables in the GST-free Supply - National Disability Insurance Scheme Supports Determination 2021.

Question 2

Is your supply of non-face-to-face services as a support worker to NDIS participants in XXX GST-free under section 38-38 of the GST Act?

Answer

Yes, your supply of non-face-to-face information technology support services to a NDIS funded participant are GST-free under section 38-38 of the GST Act provided the supports provided the NDIS participant has a NDIS plan in effect, and the supply is of reasonable and necessary support that are specified in the statement of supports in the participant's NDIS plan, and there is a written agreement between you and the NDIS participant, and it is a supply covered by one of the tables in the GST-free Supply - National Disability Insurance Scheme Supports Determination 2021.

Question 3

Are travel costs to and from the NDIS participant's premise GST-free under section 38-38 of the GST Act?

Answer

Where your supply of services as a support worker to NDIS participants in XXX is GST-free (as addressed in Question 1), the travel costs to and from the NDIS participant's premise is also GST-free to the extent that the travel is incidental to the service.

Question 4

Does GST apply to short notice cancellations where NDIS participants cancel their scheduled support booking slot in short notice or where there was 'no show' of the NDIS participant?

Answer

The short notice cancellation and 'no show' fee is GST-free to the extent that it relates to a supply of a right to receive a supply that would be GST-free had it not been cancelled.

Question 5

Is the supply of electronic devices such as XXX GST-free?

Answer

No, the supply of electronic devices such as XXX is a taxable supply if the requirements of section 9-5 are met. It is not GST-free under section 38-38 as it does not satisfy one of the requirements as a "reasonable and necessary supports".

This ruling applies for the following periods:

Year ending 30 June 2023

Year ending 30 June 2024

The scheme commenced on:

16 May 2023

Relevant facts and circumstances

You are a sole trader running an enterprise of providing support work to participants under the National Disability Insurance Scheme (NDIS).

You are registered for Goods and Services Tax (GST).

Your work as a support worker involves XXX.

You charge a fee as a XXX for the following services you provide to NDIS participants as per the NDIS Pricing Arrangements 2023

You are a NDIS-registered provider.

You bill the NDIS participant through the participant's plan manager, self-managed arrangement or directly via the National Disability Insurance Agency (NDIA).

Each NDIS participant has an individual plan with the NDIA.

You have a written agreement between you and each NDIS participant specifically stating that the provision of the support work services is reasonable and necessary to the participant's specific circumstances.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 section 9-5

A New Tax System (Goods and Services Tax) Act 1999 section 38-38

Reasons for decision

Question 1

Goods and services tax (GST) is payable on taxable supplies.

Under section 9-5 of the GST Act, you make a taxable supply if:

(a)          You make a supply for *consideration; and

(b)          The supply is made in the course or furtherance of an *enterprise that you *carry on; and

(c)          The supply is *connected with the indirect tax zone (Australia); and

(d)          You are *registered or *required to be registered.

However, the supply is not a *taxable supply to the extent that it is *GST-free or *input taxed.

(Note: the * denote a defined term within the GST Act.)

There are no provisions in the GST Act under which your supply of services input taxed.

We need to consider whether your supply of XXX to a NDIS funded participant may be GST-free under section 38-38 of the GST Act.

Section 38-38 of the GST Act provides that certain supports provided to NDIS participants are GST-free. Section 38-38 of the GST Act states:

A supply is GST-free if the supply:

(a) 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

(b) 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

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

(i) identifies the participant; and

(ii) 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

(d) is of a kind that the *Disability Services Minister has determined in writing.

NDIS plan is in effect

You have stated that your participant's have a NDIS plan.

Made under a written agreement

You have stated that you have written agreement between you and the NDIS participant and that the provision of the support is reasonable and necessary to the participant.

A supply covered by the Disability Services Minister's Determination

For the supply to be GST-free, your supply to the NDIS participant must be of a kind covered by the Disability Services Minister's Determination. The Determination applies to supplies made on or after 1 July 2021 but before 1 July 2025.

The NDIS Determination has two tables:

•                     If your supply is covered by an item listed in Table 1, the requirement to be covered by the NDIS Determination is satisfied.

•                     If Table 1 doesn't apply, you can consider Table 2. When an item in Table 2 is relevant to your supply, the requirement to be covered by the NDIS Determination is only satisfied if the item is also covered by one of three other determinations below:

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

-   Section 6 of the A New Tax System (Goods and Services Tax) (GST-free Supply-Residential Care-Government Funded Supplier) Determination 2015 (Residential Care Determination), or

-   Sections 6 or 7 of the GST-free Supply (Health Services) Determination 2017 (Health Services Determination).

Table 1

The supplies covered by Table 1 of the NDIS Determination are:

•                     specialist disability accommodation and accommodation or tenancy assistance (the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 sets out the requirements that must be met to supply specialist disability accommodation)

•                     assistance in coordinating or managing life stages, transitions and supports, including daily tasks in a group or shared living arrangement

•                     household tasks

•                     assistance with and training in travel or transport arrangements, excluding taxi fares

•                     interpreting and translation

•                     assistance to access and maintain education and employment

•                     assistive equipment for recreation

•                     early intervention supports for early childhood

•                     management of funding for supports in a participant's plan.

The supplies listed in Table 2 are:

•                     assistance with daily personal activities

•                     specialised assessment and development of daily living and life skills, including community participation

•                     assistive equipment for general tasks and leisure, including assistive technology specialist assessment, set up and training

•                     behavioural support and therapeutic supports

•                     home modifications

Under the Care Determination, 'training in use of aids and appliances' is listed as an example of supports for 'assistance with daily personal activities.'

[omitted]

As such, you are making GST-free supplies under section 38-38 of the GST Act where the NDIS participant's plan states for the supports you provide to each individual participant to be reasonable and necessary, and the supports are listed in the Disability Services Minister's Determination, and you have a written agreement between you and the NDIS participant.

Question 2

Refer to Question 1

Question 3

For GST purposes, a mixed supply is a supply that has to be separated or unbundled as it contains separately identifiable taxable and non-taxable parts that need to be individually recognised.

Where a supply contains a dominant part and the supply also includes something that is integral, ancillary or incidental to that dominant part, then the supply is a composite supply. A composite supply is the supply of a single thing. For GST purposes, a composite supply is either a taxable or non-taxable supply.

Goods and Services Tax Ruling (GSTR 2001/8) Goods and services tax: Apportioning the consideration for a supply that includes taxable and non-taxable parts explains at paragraphs 58 and 59:

58. You will need to consider all of the facts to determine whether the supply that you make has any parts that are integral, ancillary or incidental.

59. No single factor (by itself) will provide the sole test you use to determine whether a part of a supply is integral, ancillary or incidental to the dominant part of the supply.

Having regard to all the circumstances, and taking a commonsense and practical approach, indicators that a part may be integral, ancillary or incidental include where:

•                     you would reasonably conclude that it is a means of better enjoying the dominant thing supplied, rather than constituting for customers an aim in itself; or

•                     it represents a marginal proportion of the total value of the package compared to the dominant part; or

•                     it is necessary or contributes to the supply as a whole, but cannot be identified as the dominant part of the supply; or

•                     it contributes to the proper performance of the contract to supply the dominant part.

Chapter 2.a.20 of the Health Industry Partnership Issues Register explains where a health practitioner charging the patient a higher fee because of the requirement to travel to another place for that treatment. Although it is related to another GST-free provision in the GST Act, the principles of integral, ancillary or incidental to the dominant part of the supply is applicable. It states:

Where the practitioner is required to travel to the premises of a client and it is an integral component of the appropriate treatment that the service is to be performed at those premises, any additional charge for the reason that the practitioner is required to perform those services at those premises will be embodied in the supply of that that service being a medical or other health service. Accordingly, the additional amount will be GST-free provided all of the other necessary elements of sections 38-7 or 38-10 are met.

An example of where travelling to a patient's premises will be part of the appropriate treatment is where a patient is immobilised due to back injury and a 'recognised profession' in physiotherapy' travels to the patient's resident to provide the appropriate treatment.

Another example is where an occupational therapist travels to a patient's employment premises to consider and advise upon the physical work environment of the patient as part of the appropriate treatment of the patient.

Where the practitioner undertakes travel to provide the treatment as a matter of convenience, then that component of the supply is not GST-free. Section 9-80 is applicable as it relates to 'The value of taxable supplies that are partly GST-free or input taxed'.

Therefore, where your supply of services as a support worker to NDIS participants in XXX is GST-free under section 38-38 of the GST Act, the travel costs that you make to provide this supply is also GST-free.

However, if at any time you undertake the travel to provide your services to NDIS participants as a matter of convenience, then the travel time is no longer a component of that supply of XXX support to NDIS participant. The travel fee will be considered for a taxable supply, and you will be liable to pay GST for the travel fee.

Question 4

Goods and Services Tax Ruling 2009/3 Goods and services tax: cancellation fees (GSTR 2009/3) consider the GST consequences of cancellation fees and principally examines whether there is a supply for which a cancellation fee is the consideration.

Paragraphs 111 and 112 of GSTR 2009/3 states:

111. If the appointment is cancelled or there is a no show, the supplier is unable to make the intended supply. This is because the customer's attendance is integral to the making of that supply. The availability of the supplier to provide the services and of the customer to receive the services is a reciprocal arrangement. Although the intended supply is not made, a facilitation supply is still made by the supplier. The Commissioner considers that any cancellation fee charged is consideration for the facilitation supply. The GST status of this supply is to be determined independently of the GST status of the intended supply.

112. However, where the facilitation supply includes a right to receive a GST-free supply under Division 38 or another provision of another Act and the appointment is subsequently cancelled, the cancellation fee will be consideration for the right to receive a GST-free supply, which itself is a GST-free supply under paragraph 9-30(1)(b). An example is where at the time of making an appointment a patient and a medical practitioner make a contract giving the patient a right to medical services that would be GST-free under section 38-7.

Paragraph 111 of the GSTR 2009/3 states the general rule that the GST status of a facilitation supply is to be determined independently of the GST status of the intended supply. However, paragraph 112 of the GSTR 2009/3 explains the exception for situations where a facilitation supply includes the right to receive a GST-free supply under Division 38.

In your case, where your supply of services as a support worker to NDIS participants in XXX is GST-free under section 38-38 of the GST Act, the late cancellation fee you charge your NDIS participant is consideration for the right to receive the GST-free supply. Therefore, in applying with paragraph 9-30(1)(b) of the GST Act and paragraph 112 of GSTR 2009/3, the late cancellation fee is GST-free because it relates to a supply of a right to receive a supply that would be GST-free under section 38-38 of the GST Act had it not been cancelled.

Question 5

For a supply to be GST-free under section 38-38 of the GST Act, the above 4 (under the reasons for decisions for Question 1) requirements are required to be met and the recipient has to be the NDIS participant.

For there to be an "NDIS plan in effect", the NDIS plan must be in relation to "reasonable and necessary supports" and be approved by the National Disability Insurance Agency (NDIA).

The NDIA have set out NDIS guidelines providing guidance about various topics including "reasonable and necessary supports" and "assistive technology".

Under the topic of "reasonable and necessary supports" the NDIA considers what type of supports cannot be funded or provided under the NDIS. One of the considerations to determine "reasonable and necessary supports" is if the support is related to your disability. In this regard the NDIS guidelines state:

We can't fund a support if it's not related to your disability. This means there must be a direct link or a connection between your disability and the supports we fund.

We look at whether the support addresses your disability support needs. Your disability support needs are those that arise from, or are caused by, your disability.

For example, we wouldn't usually fund things like:

•                     standard televisions

•                     standard household furniture such as dining chairs

•                     upgrades to assistive technology and home modifications that are not related to disability needs, such as marble tiling or leather materials

•                     flights to go on a holiday

•                     a car to get to work because there are no public transport options

•                     a gym membership to get fit

•                     a swimming pool to relax in summer.

This is because you're unlikely to need these supports as a result of your disability support needs. They are things that all people, with or without disability, might want or need.

Usually, there won't be a direct link or connection between these things and your disability support needs. Having a disability doesn't usually affect whether someone needs or wants these types of things.

The NDIS guidelines provide further guidance on what it considers to be "assistive technology".

It is our understanding that NDIS generally does not provide funding for standard or everyday equipment and general assistive technology used by everyone with or without a disability as it does not consider these to be disability-related support and therefore are not "reasonable and necessary supports". The NDIS guidelines state that the equipment needs to be specialised equipment, specialised assistive technology or modifications to standard equipment to account for a particular disability for it to be disability-related and to be funded by NDIS.