Edited version of private advice

Authorisation Number: 1052259327734

Date of advice: 7 June 2024

Ruling

Subject: GST - NDIS disability supports

Question

Is the supply of your services to the NDIS participant GST-free under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes, the supply of your services to the NDIS participant are GST-free under section 38-38 of the GST Act.

Relevant facts and circumstances

You are registered for goods and services tax (GST).

You have confirmed that the NDIS participant has a NDIS plan in effect.

You supply services that are relevant to the NDIS participant's plan.

You provide assistance to the NDIS participant and their individual needs.

You have a written agreement with the NDIS participant.

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 subsection 177-10(5)

Reasons for decision

Summary

The supply of your disability supports to the NDIS participant are GST-free under section 38-38 of the GST Act.

Detailed reasoning

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

You provide services to a NDIS participant in their home and in the community.

Your services will be GST-free if you satisfy all of the requirements under section 38-38 of the GST Act.

NDIS plan is in effect

To satisfy paragraph 38-38(a) of the GST Act, the participant's NDIS plan must be in effect under section 37 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and must be approved by the National Disability Insurance Agency (NDIA).

A plan ceases to be effective when it is replaced by another plan, or when the NDIS participant ceases to be a participant of the NDIS.

You have taken steps to confirm the NDIS participant has a NDIS plan in effect. You provide your services to the NDIS Participant.

Therefore, paragraph 38-38(a) of the GST Act is satisfied.

Reasonable and necessary supports

To satisfy paragraph 38-38(b) of the GST Act, your supply must consist of one or more reasonable and necessary supports, as outlined in the participant's NDIS plan.

Based on the information provided, your services are a reasonable and necessary support, as specified in the NDIS participant's plan.

Therefore, paragraph 38-38(b) of the GST Act is satisfied.

Made under a written agreement

To satisfy paragraph 38-38(c) of the GST Act, a written agreement must be made between you and the NDIS participant (or another person). The written agreement must:

• identify the NDIS participant, and
• state 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 the NDIS Act, in the participant's NDIS plan.

The written agreement can be between you and a person other than the NDIS participant. Other people can include those who manage the plan and funding for the NDIS participant. This could include the NDIA, a plan management provider registered with NDIA, or a guardian or relative of the NDIS participant.

You have a written agreement between you and the NDIS participant that includes:

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

Therefore, paragraph 38-38(c) of the GST Act is satisfied.

A supply of a kind determined by the Disability Services Minister

Based on the information provided, you meet the first three requirements under paragraphs 38-38(a) to (c) of the GST Act. However, for the supply of your services to be GST-free, the supply must be of a kind determined in writing by the Disability Services Ministers.

The A New Tax System (Goods and Services Tax) (GST-free Supply-National Disability Insurance Scheme Supports) Determination 2021 (NDIS Determination) is made under subsection 177-10(5) of the GST Act by the Disability Services Minister. The NDIS Determination applies to supplies made on or after 1 July 2021.

The NDIS Determination contains two tables, with the table under:

• subsection 6(1) of the NDIS Determination (Table 1) listing supplies of supports that are covered, and
• subsection 6(2) of the NDIS Determination (Table 2) listing the supports that are covered if they are also covered by another determination.

If the supply is covered by Table 1 of the NDIS Determination, the requirement under paragraph 38-38(d) of the GST Act will be satisfied.

If a supply is not covered by Table 1 of the NDIS Determination, the requirement under paragraph 38-38(d) of the GST Act may still be satisfied if the supply is covered by Table 2 and the supply is also listed in any of one of the following determinations:

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

Table 1

Table 1 of the NDIS Determination lists the following:

Table 1: NDIS Determination lists the following:

We do not consider that your services are covered by any item under Table 1 of the NDIS Determination. Therefore, we must determine whether your supply is covered by Table 2 of the NDIS Determination.

Table 2

Table 2 of the NDIS Determination lists the following:

Table 2: NDIS Determination lists the following:

The Explanatory Statement to the A New Tax System (Goods and Services Tax) (GST free Supply-National Disability Insurance Scheme Supports) Determination 2021 (Explanatory Statement) provides examples of supplies covered by the NDIS Determination.

For supplies under item 1 of Table 2 of the NDIS Determination, the Explanatory Statement provides the following examples:

Table 3: For supplies under item 1 of Table 2 of the NDIS Determination, the Explanatory Statement provides the following examples:

Based on the information above, we consider that the supply of your services is covered by item 1 'assistance with daily personal activities under Table 2 of the NDIS Determination.

Therefore, we must determine if your supply is covered by one of the three determinations under paragraph 6(2)(b) of the NDIS Determination.

The Care Determination

Schedule 1 of the Care Determination provides:

Table 4: Schedule 1 of the Care Determination provides:

Based on the information above, we consider that your services are covered by the following items under the table in Schedule 1 to the Care Determination:

• Item 1 - Home Help
• Item 2 - Personal Care
• Item 6 - Provision of food
• Item 8 - Transport to and from day care or similar centres and for shopping trips, social outings and for health-related purposes
• Item 17 - Linen services
• Item 20 - Medication management.

Therefore, your services are covered by item 1 under Table 2 of the NDIS Determination and Schedule 1 to the Care Determination, satisfying paragraph 38-38(d) of the GST Act.

As such, your supply to the NDIS participant is GST-free under section 38-38 of the GST Act. No GST is payable on your supply.