Is your supply of Art Therapy services to NDIS participants over 7 years of age, GST-free under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?
No, your supply of Art Therapy services to NDIS participants over 7 years of age, is not GST-free under section 38-38 of the GST Act. This ruling applies for the following periods : 2 May 20XX to 30 June 20XX The scheme commenced on: 2 May 20XX
You are registered for goods and services tax (GST). You are an Art Therapist providing services to clients who are NDIS participants. You have a Masters in Therapeutic Arts Practice (specialisation in Therapy) from MIECAT Institute. You are currently registered with the Australian, New Zealand and Asian Creative Arts Therapies Association (ANZACATA) which is the peak professional association for Creative Arts Therapies in Australia, New Zealand and Asia. Your supply of Art Therapy services meets the first three requirements of section 38-38 of the GST Act. That is, your supply of Art Therapy services: - are made to NDIS participants that have a NDIS plan in effect, and your supply of Art Therapy services is a reasonable and necessary support that is specified in the statement of supports in the participant's NDIS plan, and there is a written agreement between you and the NDIS participant in relation to your Art Therapy services.
You submit that your supply of Art Therapy services to individuals over the age of seven would come within Item 4 - Behavioural supports and therapeutic supports of Table 2 of the A New Tax System (Goods and Services Tax) (GST free Supply - National Disability Insurance Scheme Supports) Determination 2021(NDIS Determination). You further submit that your Art Therapy services align with Item 18 - Counselling of Schedule 1 to the GST-free Supply (Care) Determination 2017 (Care Determination) You provide your Art Therapy services to individuals on a one to one basis and as part of group therapy or family group therapy. You don't currently have any clients in a residential care facility.
A New Tax System (Goods and Services Tax) Act 1999 Section 38-38
Section 38-38 of the GST Act deals with disability support provided to NDIS participants and states: A supply is GST-free if the supply: (a) is a supply to a participant (within the meaning of the National Disability Insurance Scheme Act 2013) for whom a participant's plan is in effect under section 37 of that Act; and (b) is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of that Act, in the participant's plan; and (c) is made under a written agreement, between the supplier and the participant or another person, that: (i) identifies the participant; and (ii) states that the supply is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of that Act, in the participant's plan; and (d) is of a kind that the * Disability Services Minister has determined in writing.
You have told us that your supply of Art Therapy services meets the first three requirements of section 38-38 of the GST Act. On this basis, what remains to be determined by this private ruling is whether your supply of Art Therapy services is of a kind that the Disability Minister has determined in writing. For the supply to be GST-free, as well as meeting the other three requirements outlined above, your supply to the NDIS participant must be of a kind covered by the NDIS Determination. The NDIS Determination has two tables: The table in subsection 6(1) - supplies of supports that are GST-free (Table 1) The table in subsection 6(2) - supplies of supports that are GST-free if they are listed in other determinations (Table 2). As your query is in relation to Art Therapy services provided to individuals over the age of seven years, your supply is not covered by any item listed in Table 1. As your supply is not covered by Table 1, the supply is only covered by the NDIS Determination if it is both: listed in Table 2 listed in any one of three other determinations: (i) Schedule 1 to the GST-free Supply (Care) Determination 2017 (Care Determination)
(ii) Section 6 of the A New Tax System (Goods and Services Tax) (GST-free Supply-Residential Care-Government Funded Supplier) Determination 2015 (Residential Care Determination), or (iii) Sections 6 or 7 of the GST-free Supply (Health Services) Determination 2017 (Health Services Determination). Item 4 of Table 2 refers to Behavioural supports and therapeutic supports. The explanatory statement to the NDIS Determination provides the following examples of behavioural support and therapeutic supports most relevant to your case: Table 1: Examples of behavioural support and therapeutic supports Classes of Supports Example Description Behavioural support and therapeutic supports Counselling as part of a group Facilitating self-knowledge, emotional acceptance and growth and the optimal development of personal resources through a group session. Assisting participants to gain their personal goals and gain greater insight into their lives. Behavioural support and therapeutic supports Counselling for an individual
Facilitating self-knowledge, emotional acceptance and growth and the optimal development of personal resources on a one to one basis. Assist participants to gain their personal goals and gain greater insight into their lives. Behavioural support and therapeutic supports Group therapy, family group therapy Interventions in relation to psychosocial or relational issues required due to the person's disability In relation to the three other determinations, as your supply of Art Therapy services is not provided in a residential care facility, only the Care Determination is relevant to your case. You have submitted that your Art Therapy services aligns with Item 18 - Counselling of the Care Determination. "Counselling" is not a defined term in the GST Act. However, some considerations in regard to determining what constitutes counselling are what the peak bodies/associations for counselling in Australia regard as being typical and accepted treatments in the counselling profession. The NDIS provides the Pricing Arrangements and Price Limits (NDIS price guide) which apply to services covered by NDIS. Under the heading "Therapy supports (7 or older)" it states:
In particular, these support items can only be delivered by the following types of professionals, and by therapy assistants operating under the delegation and supervision of one of the following types of professionals: • Art Therapist - A person who is a Professional Member with the Australian, New Zealand and Asian Creative Arts Therapy Association (ANZACATA). • ... • Counsellor - A person who is either a member of the Australian Counselling Association or an accredited Registrant with the Psychotherapy and Counselling Federation of Australia. • ... Further, the NDIS price guide sets a different standard hourly price limit for an Art Therapist ($193.99) and a Counsellor ($156.16). The NDIS as such, recognises that there is a difference between an Art Therapist and a Counsellor and the services they provide as is evidenced by the different definition of these professionals and the different price limits applicable to the services that they provide in the NDIS price guide. Therefore, for the purposes of section 38-38 of the GST Act, we do not consider that the services provided by an Art Therapist would constitute "counselling" in relation to NDIS.
As no other item of Schedule 1 of the Care Determination is applicable to your supply, it follows that your supply of Art Therapy services does not come within the Care Determination and as such your supply of Art Therapy services does not meet the requirements of paragraph 38-38(d) of the GST Act to be a GST-free supply.