Two cautionary tales for NDIS providers: lessons from the Ausnew and Mable cases on pricing, advertising and contracts

Providers funded under the NDIS must now ensure their pricing is honest, transparent, and justifiable.

The NDIS Code of Conduct was updated in 2023 with new rules on price differentiation, following the introduction of the National Disability Insurance Scheme (Code of Conduct) Amendment (2023 Measures No. 1) Rules 2023 which amended the National Disability Insurance Scheme (Code of Conduct) Rules 2018.

Price differentiation occurs when a provider charges a participant more for something they purchase than they would charge if the person was not a participant.

A person covered by the NDIS Code of Conduct (Code) must not, without reasonable justification:

• represent a price for the supply of goods for a participant that is higher than the price represented for the supply by the Code‑covered person of the same (or substantially the same) goods for a person who is not a participant; or
• charge a price for the supply of goods for a participant that is higher than the price that the Code‑covered person charges for the same (or substantially the same) goods for a person who is not a participant.

This is only about goods, not services. Goods are things that you can touch, feel and see. Services are work done or help provided to a person. In the future, further changes may be introduced to cover other supports, such as allied health services or in-home supports services.

The Fair Pricing Taskforce is a collaborative initiative established in late 2023 by the Australian government to address unfair pricing practices and overcharging by NDIS providers. 

Chaired by the Australian Consumer and Competition Commission (ACCC), the taskforce involves the NDIS Commission and the National Disability Insurance Agency (NDIA). Its role is to investigate and take regulatory action against providers who charge NDIS participants significantly more for goods and services than other consumers. 

The taskforce aims to protect NDIS participants' rights under Australian Consumer Law (ACL) and ensure fair and transparent pricing within the scheme. 

If the Commission finds examples of differential pricing, providers can be subject to the usual Commission compliance actions. Depending on the severity, this can include provider education, additional orders and oversight, through to banning orders, fines and criminal charges.

In some cases. providers may be required to pay money back into the person’s NDIS plan when the price was deemed to be unclear or unfair. 

‘The taskforce is effectively identifying and addressing misconduct, and ensuring every possible dollar in the NDIS is being used to support people with disability.’

In ACCC v Ausnew Home Care Services Pty Ltd the ACCC commenced proceedings in the Federal Court in December 2024 in relation to the following alleged conduct: 

• Misleading ‘was/now’ pricing: Between November 2022 and December 2023, Ausnew advertised thousands of aged-care and disability products with a strikethrough ‘former’ price alongside a lower ‘sale’ price plus ’last chance’ banners and countdown clocks.
• False impression of urgency and savings: the ACCC alleges that the ‘sale’ price was in fact the normal selling price, meaning the alleged savings, and the claim the sale was time-limited, were misleading.
• ‘NDIS approved’ representations: from November 2022 to July 2024, Ausnew described many items as ‘NDIS approved’. In reality, the NDIS Quality & Safeguards Commission registers providers, not individual products.
• Restrictive refund policy: the company’s website stated refunds were conditional on products being returned within seven days in original packaging (and excluded ‘intimate’ items entirely), contrary to the consumer guarantees under the ACL.

Legal issues

Sections 18 of the ACL prohibits misleading or deceptive conduct.

Key compliance lessons

• Price representations must reflect genuine savings and genuine time limits, supported by robust pricing history data.
• Do not claim any ‘NDIS endorsement’ for a product – no such regime exists.
• Refund policies cannot override statutory rights. Restricting refunds for hygiene reasons is unlawful unless the item is genuinely fit for purpose.
• Countdown timers, flash sales and similar urgency cues are now an enforcement hotspot.

Mable operates an online platform linking independent support workers (mostly sole traders) with clients, including NDIS participants.

Unfair contract terms identified (9 November 2023 – 22 August 2024):

• $5,000 restraint fee: support workers who left the platform and continued caring for a client within 12 months faced an automatic $5,000 charge.
• 24-hour auto-approval of service logs: if a client did not challenge a timesheet within a day, the hours were deemed correct and payable.
• Unilateral variation: Mable could change its fees or T&Cs at any time without reasonable notice and had clauses which limited their liability for losses and claims.

Enforcement outcome

Mable entered a court-enforceable undertaking to address the concerns of the ACCC, cooperated with the ACCC’s investigation and amended its website and terms. The ACCC also set a requirement for Mable to establish and maintain an ACL compliance program.

Why these terms were unfair?

• They created a significant imbalance in rights and obligations.
• They were not reasonably necessary to protect Mable’s legitimate interests.
• They were likely to cause financial detriment to clients or sole-trader workers.

Advertising and pricing

• Keep documented pricing history to substantiate any ‘was/now’ or ‘% off’ claims.
• Remove any suggestion that products are endorsed or pre-approved by the NDIS.
• Ensure your refund policy aligns with the ACL guarantees – avoid arbitrary time limits.

Contract reviews

• Audit all standard-form contracts offered to clients, workers, subcontractors and plan managers.
• Remove or amend;
  • unilateral variation clauses
  • excessive exit fees
  • automatic renewals without notice
  • broad indemnities or liability exclusions.

Governance and training

• Ensure board-level oversight of ACL and NDIS Code compliance as part of your risk framework.
• Embed a competition & consumer law compliance program, including documented policies, regular staff training, rapid response protocols for complaints.
• If historical overcharging or unfair terms exist, self-reporting and voluntary remediation (refunds or contract amendments) can significantly mitigate penalty exposure.