The ACCC is putting businesses on notice that it is focusing in on problematic advertising practices which target participants in the National Disability Insurance Scheme (NDIS).
The ACCC has been working with the National Disability Insurance Agency (NDIA) and NDIS Quality and Safeguards Commission to identify advertising which may be in breach of the Australian Consumer Law.
"Businesses must not make false representations regarding access to the NDIS, and consumers must be able to rely on statements being made by NDIS providers as being true and accurate," ACCC Deputy Chair Catriona Lowe said.
Changes to the NDIS clarifying the supports that NDIS participants can and cannot spend their NDIS funding on came into effect on 3 October 2024. The goods and services that can and cannot be claimed can be found at the NDIS website.
"The ACCC is concerned that many businesses continue to advertise goods or services that appear on the list of ineligible supports in a way that suggests NDIS funding can be used to purchase them," Ms Lowe said.
"We are also concerned that many NDIS providers are claiming that certain products or services are 'NDIS approved', 'NDIS funded' or otherwise NDIS endorsed when this is not the case."
There are no categories of goods or services which are automatically NDIS approved or funded for all NDIS participants. Whether particular goods and services will be approved or funded under an individual NDIS participant's plan will depend on the needs and goals identified in their plan. The NDIS also does not provide specific approval or accreditation for any particular goods or services in general.
"When NDIS participants are induced into buying support goods or services that are not claimable under their plans, they can be left with substantial personal debts. These participants may also be experiencing financial hardship or vulnerability and may not have the means to pay for these goods and services," Ms Lowe said.
"The ACCC is actively investigating multiple NDIS providers for contraventions of the Australian Consumer Law and anticipates taking public enforcement action in the near future."
"NDIS providers should be aware that we are closely monitoring and responding to how they advertise their products and services to consumers, and that we will not hesitate to take appropriate enforcement action if we consider advertising is false or misleading," Ms Lowe said.
"All businesses supplying goods and services to NDIS participants should urgently review their advertising and ensure they are acting in compliance with the Australian Consumer Law."
What false or misleading advertising about the NDIS might look like
Examples of concerning advertising that may be false or misleading include:
- The use of the words 'NDIS approved', as the NDIS does not have the function of approving or endorsing particular goods or services.
- Advertising suggesting NDIS funds will cover "all inclusive" holidays, when general costs associated with holidays would not be covered by NDIS funding.
- Meal delivery services suggesting the cost of meals is covered by the NDIS, when the NDIS does not cover food expenses.
- Advertising that provides instructions on how to use NDIS funding codes to cover costs of recreational services that are not covered by the NDIS - for example, going to the movies or a theme park.
- Advertising that suggests a business is affiliated or endorsed by the NDIS, by using NDIS in its business name or in the description of its services, for example 'NDIS therapies'.
Advice for NDIS participants
If an NDIS participant thinks a business has made false or misleading statements about products or services, including whether they are funded by the NDIS, or if they consider their consumer rights have not been met, they can make a report to the ACCC.
Further information is available on the ACCC website.
Background
Each year, the ACCC announces a list of Compliance and Enforcement priorities. These priorities outline the areas of focus for the ACCC's compliance and enforcement activities for the following year.
As part of the 2024/25 Compliance and Enforcement Priorities, the ACCC is prioritising improving compliance by NDIS providers with their obligations under the Australian Consumer Law.
The ACCC also recognises that consumers experiencing vulnerability or disadvantage can be disproportionately affected by breaches of the law. Addressing conduct that impacts this cohort of consumers is always an ACCC priority.
In December 2023, the government established the NDIS (Fair Price and Australian Consumer Law) Taskforce comprising the ACCC, the NDIS Quality and Safeguards Commission and the NDIA. The Taskforce was established to address concerns that NDIS participants were being charged more for goods and services than other people, and to address potential breaches of Australian Consumer Law.
The maximum penalty for a breach of the Australian Consumer Law is the greater of:
- $50,000,000
- if the Court can determine the value of the 'reasonably attributable' benefit obtained, three times that value, or
- if the Court cannot determine the value of the 'reasonably attributable' benefit, 30 per cent of the corporation's adjusted turnover during the breach turnover period for the contravention.
