This article provides an update on recent criminal and civil proceedings against two not-for-profit NDIS providers. We highlight the key learnings for registered NDIS providers and their officers. These findings are also relevant for providers of funded aged care services because the new Aged Care Act introduces regulatory powers and registered provider responsibilities that are similar to those considered in these findings.

Criminal charges against LiveBetter Services Limited 

In our previous edition of The Prescription, we reported on the Federal Court’s decision to impose a $1.8million civil penalty on LiveBetter Services Limited (LiveBetter) following the death of an NDIS participant. 

For background on the facts of the case, and details of the civil penalty, see here.

Following the conclusion of the civil case in February this year, SafeWork NSW (SafeWork) brought criminal charges against LiveBetter for a category one breach of LiveBetter’s duty of care under the Work Health and Safety Act 2011 (NSW) (WHS Act). 

A category one breach involves gross negligence or reckless conduct that exposes others to a risk of death or serious injury. The maximum penalty for a category one breach by a body corporate is significant, being 90,424 penalty units ($10,888,858 for FY 24/25).^[1]

LiveBetter has also been charged with failing to immediately notify SafeWork of a notifiable incident. 

In March 2025, LiveBetter pleaded guilty to the charges brought by SafeWork. 

The case has had several mentions since March, including most recently on 7 July 2025. As at the date of this article, no decision has been reported.

Key takeaways for NDIS providers generally

The commencement of the criminal case highlights the breadth of consequences, under several legislative schemes, where providers of home-based care fail to provide competent and appropriate supports in a safe manner, particularly where that failure culminates in the serious injury or death of an individual. 

NDIS providers should regularly review their processes and procedures to ensure that they support ongoing compliance with the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), the NDIS Practice Standards and the NDIS Code of Conduct (both contained in rules made under the NDIS Act) and relevant state-based Work Health and Safety legislation. 

Key takeaways for officers of NDIS providers 

While the current SafeWork proceedings are against LiveBetter, the commencement of the matter provides a timely reminder to officers, including officers of not-for-profit (NFP) providers, of their due diligence obligations under the WHS Act. 

Officers have a duty to exercise due diligence to ensure that the company, as a ‘person conducting a business or undertaking’ (PCBU) for the purposes of the WHS Act, complies with its duties and obligations under the WHS Act. Due diligence includes taking reasonable steps to:   

The duty of officers to exercise due diligence in the WHS Act recognises that the decisions and behaviour of officers strongly influence the culture and accountability of a business. It is not enough for officers to simply be aware of potential risks; officers have an active duty to ensure that the organisation is complying with its statutory obligations. 

Under the WHS Act, a volunteer who is an officer (e.g. a board member who is not remunerated for that role) cannot be personally prosecuted for failing to comply with the due diligence duty. However, according to guidance from SafeWork, a volunteer officer is expected to comply with the officers’ due diligence obligations and the regulator may compel compliance. Compliance may be enforced through other powers, including the power to issue an improvement notice requiring systems for ensuring all officers comply with these obligations.

Remunerated officers should be aware of the potential personal liability as an officer of a PCBU under the WHS Act, including the significant  penalties for a category one breach under the WHS Act (18,805 penalty units ($2,264,498 for FY 24/25) or 10 years imprisonment, or both). 

Key takeaways for registered providers of funded aged care

While the LiveBetter criminal proceedings involves the alleged breach of the WHS Act by an NDIS provider, the Aged Care Act 2024 (Cth) (Aged Care Act), which is due to commence on 1 November 2025, introduces a similar statutory due diligence obligation on responsible persons of Australian Government funded aged care services. 

The Aged Care Act requires certain responsible persons of a registered provider to exercise due diligence to ensure that the provider complies with its ‘registered provider duty’ under section 179 of the Aged Care Act.^[3]

The ‘registered provider duty’ in section 179 requires providers to ensure, so far as is reasonably practicable, that the conduct of the provider does not cause adverse effects to the health and safety of individuals to whom the provider is delivering funded aged care services while the provider is delivering those services.^[4]

The responsible persons who must comply with this due diligence duty are:

• if the registered provider is not a government entity—any person who is responsible for the executive decisions of the registered provider;^[5] or
• if the registered provider is not a government entity—any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the registered provider.^[6]

The due diligence obligation largely mirrors the duty in the WHS Act, including taking reasonable steps to:

A volunteer board or committee member of a registered provider of Australian Government funded aged care services can personally be the subject of enforcement proceedings under the Aged Care Act for a due diligence failure, regardless of whether or not the registered provider has been found liable to pay a civil penalty under section 179.^[8]

Such enforcement proceedings may lead to personal liability where a person has a due diligence duty, and that person, without reasonable excuse, engages in conduct that does not comply with the duty. 

The penalties for failing to comply with a due diligence duty include:

• 150 penalty units (currently $46,200) where the failure amounts to a serious failure, meaning the conduct exposes an individual to whom the duty is owed to a risk of death or serious injury or illness, and the conduct involves a significant failure or is part of a systemic pattern of conduct;^[9] or
• 500 penalty units (currently ($165,000) where the failure amounts to a serious failure and results in the death or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.^[10]

Civil penalties against Valmar Support Services Limited

More broadly, the NDIS Quality and Safeguards Commissioner (Commissioner) continues to take strong, deterrent enforcement action against NDIS providers who fail to comply with their obligations under the NDIS Act.

In January this year, the Federal Court of Australia ordered Valmar Support Services Limited (Valmar) to pay civil penalties totalling $1,916,250 following the death of an NDIS participant. The penalty in this case^[11] exceeds the $1.8million penalty imposed on LiveBetter in April 2024, marking the largest civil penalty imposed on a NDIS provider to date. 

Facts

Valmar is a not-for-profit NDIS provider who operated a residential group home between 2016 and 2020 in Richardson, Australian Capital Territory.

Three men with intellectual disabilities who were aged in their 40s lived in the home. Each of the men was known to be at risk of choking on food or drink. Despite this, none of the Valmar’s support workers received any formal training with respect to this risk. 

In May 2020, one of the men (referred to in the judgment as Mr H) choked on food that was not prepared in accordance with his management plan. Mr H died three days later, with his cause of death recorded as choking on food. 

Process of the Court in determining the civil penalties 

The questions that the Court had to consider in Valmar were the same as those in LiveBetter: whether liability had been established, whether the declaratory orders sought would be appropriate, and the appropriate civil penalties in the circumstances.

As was the case in LiveBetter, Valmar and the Commissioner attended mediation prior to the commencement of the Federal Court hearing. During mediation, Valmar accepted that it committed 24 contraventions of the NDIS Act. The parties produced a Statement of Agreed Facts which included a list of the agreed 24 contraventions, and proposed penalty for each based on a percentage of the maximum allowed penalty. 

In considering whether the proposed penalty was appropriate in the circumstances, Justice Raper expressed concern with the approach of the parties in determining the proposed penalty amounts. 

Justice Raper noted:

• care must be taken not to reduce a highly evaluative exercise to a mathematical one. The determination of a penalty must involve a consideration of the relevant facts and circumstances specific to the convener;
• the proposed penalties (which were approximately 20% or 30% of the maximum) misapprehended the degree of seriousness of the contraventions, particularly the complete failure to ensure that 13 relevant support workers had the necessary training during the relevant period; and
• it is problematic to impose a penalty by reference to the percentages accepted by the Court in another case, particularly where the circumstances of the Valmar case were more serious than those in LiveBetter. The LiveBetter case highlighted that there was not a complete absence of training, however the training undertaken was insufficient. Contrastingly in Valmar, there was no training of staff in managing the risk of choking at all, despite the known risk of choking for these clients. 

Justice Raper warned against the use of the mathematical manner of agreeing penalties in the future, including referring to penalties as being in the “range” of the penalties in the Valmar decision or previous authorities, such as LiveBetter.

Ultimately, however, Justice Raper noted that in weighing the facts and circumstances, the agreed penalty is ‘within the range of what could be considered an appropriate penalty, but is at the very lowest possible end of the range.’ As such, the agreed penalty of $1,916,250 was imposed. 

Key takeaways for NDIS providers generally

The Valmar case consolidates the learnings from the LiveBetter matter, highlighting the importance of appropriate staff training and qualifications. Justice Raper’s commentary suggests that higher penalties may be imposed on providers in future where their failure to provide supports and services in a safe and competent manner, with care and skill, leads to the death of an NDIS participant. 

Key takeaways for registered providers of Australian Government funded aged care services

The Aged Care Act introduces provisions for registered providers of aged care that are analogous to those in the NDIS Act. The treatment of breaches of the NDIS Act in such cases provides insight into possible regulatory action under the Aged Care Act.

Both the LiveBetter and Valmar civil proceedings involved contraventions of sections 73J and 73V of the NDIS Act. Below we compare these sections with similar provisions in the Aged Care Act:

The Aged Care Act specifies that an ‘aged care worker’ of a registered provider includes an individual who is employed or otherwise engaged (including as a volunteer) by an associated provider of the registered provider, and is engaging in conduct under the associated provider’s arrangement with the registered provider relating to the registered provider’s delivery of funded aged care services.^[12] This means that the requirement in section 173 of the Aged Care Act that aged care workers of registered providers must comply with Aged Care Code of Conduct extends to individuals employed or engaged by associated providers.

An ‘associated provider’ is an entity that engages in conduct under an arrangement with a registered provider of aged care relating to the delivery of funded aged care services. The Aged Care Act applies as if the registered provider had engaged in conduct of an associated provider. As such, the conduct of an associated provider may lead to a contravention of the Aged Care Act by the registered provider.^[13]

In both LiveBetter and Valmar, the breach of section 73J of the NDIS Act included a breach of the NDIS Practice Standards. The Aged Care Act includes a condition of registration on certain registered providers to conform with the Aged Care Quality Standards:

The Aged Care Rules specify that the kind of registered providers that must conform with the Aged Care Quality Standards are personal and care support in the home or community, nursing and transition care, and residential care.^[14]

Responsible persons for registered providers of aged care, whether volunteers or in paid positions, must be aware of their duties under the Aged Care Act, and the potential consequences for a failure to comply with their responsibilities.

NDIS providers, and providers of home based care more generally, may wish to revisit the checklist that we previously prepared, and use it as a guide to assess the appropriateness of current practices, policies and procedures.