The ACCC’s case against Ausnew Home Care Services Pty Ltd has brought renewed attention to marketing practices within the NDIS sector. In December 2024, the ACCC accused Ausnew of misleading consumers through tactics like continuous “discounts” that were not genuine, countdown timers suggesting false urgency, and claims that products were “NDIS Approved.”
Whilst we await the outcome, this case does underscore the importance of clarity and accuracy in communications aimed at NDIS participants, many of whom rely on such representations to make critical decisions about their supports.
The NDIS Commission has also reinforced the need for ethical marketing practices, requiring providers to comply with the NDIS Code of Conduct. The Code requires that all providers act with integrity, honesty, and transparency, ensuring that no false or misleading claims are made in advertising or operations. These requirements also extend to the marketing of NDIS businesses for sale. When advertising a business, providers must present an accurate and truthful account of its financial health, participant base, and compliance status.
In December 2023, these efforts were bolstered by the establishment of the NDIS (Fair Price and Australian Consumer Law) Taskforce. This taskforce, a collaboration between the ACCC, the NDIS Commission, and NDIA, aims to address concerns that NDIS participants are being charged more for goods and services compared to other consumers.
Federal Minister Amanda Rishworth, who now oversees the NDIS portfolio, is expected to maintain a firm stance on these issues. Cynics might argue that it also fits into the government’s narrative of ‘dodgy providers,’ a theme that has been strategically useful in justifying reform measures and cost-containment strategies for the NDIS.
While the vast majority of providers operate with good intentions and in compliance with regulations, marketing compliance may not have always been a top priority. This case serves as a prompt to ensure that every aspect of a provider’s operations, including advertising, aligns with both the Australian Consumer Law and the NDIS Code of Conduct. Even minor oversights can lead to significant penalties and damage the trust that underpins relationships with participants.
Providers should view this case as an opportunity to reassess their marketing practices and make any necessary adjustments to avoid falling afoul of regulators.
Those providers looking to buy or sell NDIS businesses should also take care to ensure their transaction documents do not offend the NDIS Code of Conduct, and that, if they are a buyer, they have protections in place to mitigate any past misrepresentations made by the seller.
For legal guidance or general discussion, contact Amber Crosthwaite at 9288 6931 or amber.crosthwaite@lavan.com.au.
