Valmar court case explainer
On 22 January 2025, the Federal Court of Australia ordered Valmar Support Services Ltd to pay civil penalties to the Commonwealth totalling $1,916,250 – the highest ever civil penalty imposed on a NDIS provider – when it found that Valmar put participants at significant risk, leading to the death of a participant. Valmar has also been ordered to pay the NDIS Commissioner’s legal costs. This case is a significant milestone for the NDIS and offers important lessons for the disability sector. You can read the full judgement on the Federal Court website.
What was the case about?
Valmar is a not-for-profit, registered NDIS provider. The NDIS Commissioner alleged that Valmar systemically failed to provide safe and competent supports and services for three NDIS participants by:
failing to train staff (at all) or ensure they had adequate qualification(s);
failing to follow the requirements of participants’ dieticians’ plans (e.g. cutting up food into bite-sized pieces and ensuring the food was soft);
failing to create meal plans without expert consultation, such as a speech pathologist.
Valmar engaged a dietician who requested updates to participant eating and drinking plans, and that Valmar engage a speech pathologist. However, Valmar never engaged a speech pathologist for one of the participants and terminated the services of the dietician. In early 2019, Valmar engaged unqualified staff to create meal plans for participants without consulting a nutritionist, dietician or speech pathologist. The new meal plans created in early 2019 were inconsistent with the meal plans prepared by the dietician in 2017 which required food to be “soft” and “moist”. In February 2020, the eating and drinking plans were recorded as being “current” by unqualified staff with no authority or expertise to do so. In failing to attend to these requirements, especially in relation to participants who were known to Valmar to be at risk of choking, Valmar put participants at significant risk, leading to the death of a participant.
What can we learn from the Valmar case?
What ‘Failure to provide supports and services in a safe and competent manner, with care and skill’ looks like
At paragraphs 18 to 41 of the judgement, the Court steps through exactly how Valmar failed to comply with the relevant practice standards and the NDIS Code of Conduct. Those paragraphs provide helpful guidance in relation to:
mealtime management
failure to engage or follow advice from allied health professionals
recordkeeping
failure to train staff
staff qualifications and training
Valmar’s knowledge, over a long period, of the participants’ needs and choking risks
Determining the penalty amount
At paragraph 71, the Court expressed concern about taking a mathematical approach to arriving at a penalty. The Court emphasised the seriousness of Valmar’s failure to provide staff training:
“It is not a case where there was some but inadequate training undertaken, rather none at all. There is no explanation for this. There cannot be. To understand just how serious this contravening conduct was, is by remembering the purpose of the scheme: To enable persons with disability, through the provision of tailored high quality and innovative support services, to exercise their autonomy and be included in the community. The entire scheme centres around the provision of high quality support services. Such services cannot be provided, if the workers who provide them, are given no training. The whole scheme fails.”
In arriving at the $1.9 million penalty, the Court acknowledged Valmar’s cooperation throughout the proceedings and how it conducted its own internal investigation. It is possible that NDIS providers could face higher penalties if they are faced with significant incidents and fail to adequately conduct their own internal investigations or cooperate with the NDIS Commission.
What is the NDIS Commission doing to rebuild trust in providers?
The NDIS Commissioner has welcomed the penalty imposed on Valmar – you can read the Commissioner’s media release on our news page.
In addition to taking strong, deterrent enforcement action when providers significantly fail in their compliance obligations, we also provide information and education to providers, and people with disability and their families, to help navigate what good practice and standards of care look like. Resources on topic such as mealtime management, supporting safe and enjoyable meals, the NDIS Code of Conduct, and NDIS Practice Standards are available online and through our general enquiry phone line on 1800 035 544.