Statement on Afford civil penalty outcome
The NDIS Quality and Safeguards Commission (NDIS Commission) has welcomed the penalty imposed against the Australian Foundation for Disability (Afford), in relation to the death of Ms Merna Aprem.
Ms Aprem, who was an NDIS participant, drowned in a bathtub on 23 May 2019 while living in a supported independent living home operated b y Afford in Woodbine, Sydney.
NDIS Quality and Safeguards Commissioner Tracy Mackey said she welcomed the court’s decision today and said the death of Ms Aprem was a tragedy that should have been avoided.
“The rights of people with disability should be upheld, they should have access to quality services and supports, and their consumer independence should be enabled. This was not the case with Ms Aprem,” Commissioner Mackey said.
“These proceedings are a reminder to all providers that the Commission will not hesitate to take appropriate regulatory action where providers fail to comply with their legal obligations that are designed to keep participants safe.”
In December 2021, following an extensive investigation, the NDIS Commission commenced civil penalty proceedings in the Federal Court of Australia against Afford in relation to Ms Aprem’s death.
The NDIS Commission alleged a number of contraventions of the National Disability Insurance Scheme Act 2013 by Afford—specifically, of sections 73J and 73V—with respect to the supports and service it provided to Ms Aprem leading up to, and at the time of, her death.
The NDIS Commission alleged that Afford failed to comply with its obligations under the NDIS Code of Conduct and the NDIS Practice Standards in several ways, in response to which Afford subsequently admitted liability through a statement of agreed facts.
As a result of the contraventions, the Court has today ordered Afford to pay civil penalties to the Commonwealth totalling $400,000. Afford has also been ordered to pay the NDIS Commissioner’s legal costs.
In delivering the Court’s judgment on penalty, Justice Abraham noted the following:
“The consequences that may ensue from breaches of the NDIS Code of Conduct and NDIS Practice Standards are potentially grave given the vulnerability of NDIS participants. The present case is a stark example of this.
“The importance of NDIS providers (and persons employed or engaged by them) complying with the obligations imposed by the NDIS Act, cannot be overstated.”
A copy of the judgment is available at https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0629.
The NDIS Commission is the national regulator of supports and services provided to people with disability who participate in the National Disability Insurance Scheme (NDIS).
The NDIS Commission has strong regulatory and compliance powers under Commonwealth law where suspected breaches of a provider’s obligations under the NDIS Act, including the NDIS Code of Conduct and the NDIS Practice Standards, are identified.
These powers include seeking civil penalties when a provider has failed to deliver supports and services in a safe and competent manner, with care and skill.