The decision in Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314 serves as a salient reminder on providers to ensure that they engage sufficient administrative resources to respond to and cooperate with requests from the National Disability Insurance Agency (Agency) in a timely manner.
The applicant, Affinity Care Services (Affinity Care) brought a number of related actions against the Agency contending that the Agency had improperly “frozen” payments to them. Affinity Care’s actions were premised on the basis that they were entitled to payment for the services they had provided to participants and continued to provide to participants even after the Agency stopped making payments.
The Agency countered by describing how the Affinity Care had been moved from automatic payments to manual payment review after a number of “tip-offs” and complaints about the provider. The manual payment review meant that the Agency sought to validate and substantiate claims before making payment. There was evidence before the Court that the Agency had requested supporting documentation from Affinity Care to allow it to review the claims, but that Affinity Care had not made this information readily available.
The Court disputed the applicant’s characterisation of “freezing” or “withholding” funds, given that section 45 of the NDIS Act conferred no right to payment of Affinity Care’s claims and instead found that the Agency was in the process of making a determination, albeit that Affinity Care was not satisfied with the process. The Court also found that to the extent that Affinity Care submitted that the request for information was oppressive or burdensome, the difficulty experienced by Affinity Care was a function of the structure of its’ business.
The Court was also critical of the submissions that the Agency was required to make payment to Affinity Care on a quantum meruit basis (which allows a person to recover for compensation for services provided) because the Agency had neither requested the services, nor been unjustly enriched by the failure to make payment.
Takeaways
Small providers often have fewer administrative resources available to them and choose to invest those available in service provision. However, this decision illustrates that this may come at the expense of the overall financial viability of a provider. The extent to which the office manager was busing working in the substantive business of providing and coordinating participant services was of no assistance to Affinity Care in recovering outstanding funds, which according to affidavit evidence, was vital to keep Affinity Care from becoming insolvent.
It was also noted that some information in support of the payments had been purportedly provided to the Agency from Affinity Care’s solicitors with a password protected link, with a note that the link could be obtained if the Agency contacted Affinity Care. Whilst privacy and secure transfer of information are generally prudent considerations for providers to have,
Affinity Care may have been better advised to provide the password and not place unnecessary impediments on the Agency’s ability to substantiate its claims.
To read the decision in in Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314 click here.
