1. The respondent's decision of 28 December 2022, to issue an NDIS exclusion to the applicant, is set aside.
2. The respondent is directed to give an NDIS clearance to the applicant.

1. On 27 September 2021, Mr Nathan Miles - who has worked in the disability sector for more than a decade - applied for an NDIS check under the Worker Screening Act 2020 (Vic) ('WS Act').
2. The application was rejected and the Secretary to the Department of Government Services ('Secretary') issued Mr Miles with an NDIS exclusion on 22 November 2022 and, again (after internal review) on 28 December 2022 ('Exclusion Decision'). The Exclusion Decision was based on shoplifting offences committed by Mr Miles as a young adult ('Shoplifting Offences') and a number of serious, but unsubstantiated, allegations of misconduct within a supported independent living ('SIL') home, which had been referred by Mercy Connect Limited ('Mercy') to the NDIS Quality and Safeguards Commissions ('Mercy Allegations').
3. By application made to VCAT on 9 January 2023, Mr Miles seeks review of the Exclusion Decision. In broad terms, he contends that he does not pose any risk to persons with a disability given the historical nature of the Shoplifting Offences and on the basis that the Mercy Allegations are 'questionable at best and do not provide evidence to suggest that [he poses] an unacceptable risk'. Further, he contends that the issue of an NDIS clearance is in the public interest to:
   • enable him to provide direct services to two participants, who moved as clients from Mercy to a business that he has established with another colleague, known as Milestone Disability Support Services ('Milestone'); and
   • enable Milestone to become a registered provider under the National Disability Insurance Scheme ('NDIS').
4. As indicated by Senior Member Smithers in DHU v Secretary to the Department of Justice and Community Safety ('DHU'), on review:[1]

it is not the Tribunal's role to make any definitive ruling as to whether the alleged conduct did or did not occur. Rather, its role is to determine the level of risk which would be associated with ordering the grant of an NDIS clearance, applying the statutory criteria. This does however involve consideration of the surrounding circumstances relevant to the question of whether the alleged conduct occurred.

1. Having regard to the totality of the evidence before the Tribunal, I am satisfied that Mr Miles does not pose an unacceptable risk of harm to persons with a disability. In forming this view, I particularly note:
   • Mr Miles' age at the time of the Shoplifting Offences (i.e. he was 18 years' old), as well as the absence of evidence to suggest that Mr Miles has engaged in any similar behaviour since that time (i.e. over the last 20 years); and
   • that although some of the Mercy Allegations are quite serious, except for one (relatively minor) matter, they have never been properly investigated or substantiated and:
     • - there is evidence that Mr Miles could not have been responsible for the most serious issues raised by Mercy; and
     • - his denials of the remainder are corroborated by the evidence given by the parent of the resident concerned, as well as another former Mercy employee who successfully pursued a bullying and harassment claim against Mercy against the context of similar allegations about his conduct.
2. Further, I am satisfied that there is a public interest in granting Mr Miles an NDIS clearance given his considerable experience in the sector, his work with two of the residents that have moved from Mercy to Milestones and the benefit of having additional NDIS registered providers in regional areas.
3. Accordingly, I will set aside the Exclusion Decision and order that the Secretary grant an NDIS clearance to Mr Miles.

1. Mr Miles' application for an NDIS clearance was a 'category C application'[2] on the basis that he had been found guilty of the Shoplifting Offences (which are, in the scheme, the most minor offences identified).
2. In DHU, Senior Member Smithers set out a lengthy exposition of the statutory framework for review of a category C decision, drawn from the Secretary's submissions in that case.[3] Relevantly, the Tribunal must determine that it is appropriate to refuse a NDIS clearance 'unless satisfied that the applicant does not pose an unacceptable risk of harm to persons with a disability' having regard to the following factors set out in section 103(1) of the WS Act, namely:

(a) the nature, gravity, and circumstances of the conduct;

(b) the period of time that has passed since the applicant engaged, or allegedly engaged, in the conduct;

(c) the vulnerability of the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(d) the applicant's relationship to the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(e) whether the applicant had a position of authority in relation to the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(f) the applicant's criminal, misconduct, and disciplinary history, including whether there is a pattern of concerning behaviour;

(g) the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct;

(h) all other relevant circumstances in respect of the applicant's offending, misconduct, or other relevant history;

(i) any other matter that VCAT considers relevant.

1. Mr Panayi (counsel for the Secretary) agreed that, when the Tribunal comes to consider the statutory criteria set out in section 103(1)(a), references to 'the conduct' are references to conduct which make it a category C application, i.e. in this case, the Shoplifting Offences. The Mercy Allegations were not investigated by the NDIS Quality and Safeguards Commission and did not give rise to an order by the NDIS Commissioner which might itself make the application a category C application.[4] As such, the Mercy Allegations are not to be taken into account in relation to those factors which reference 'the conduct' (i.e. factors (a) to (e)) but may, of course, be taken into account in terms of the other more general factors (i.e. factors (f) to (i)).
2. When assessing the factors set out in section 103(1), the Tribunal must have regard to the paramount consideration for NDIS clearances and checks set out in section 10, namely 'the health, safety and well-being of persons with a disability', particularly to protect such persons from 'abuse, violence, neglect and exploitation'.
3. However, it is important to bear in mind that, while the Tribunal's role is to 'carry out an analysis of the various relevant risks and make an "evaluative judgement" as to the magnitude of the risk overall',[5] it is 'not required that there be no risk at all'.[6]
4. As observed by (then) Deputy President Lambrick in Gibbons v Secretary to the Department of Justice and Community Safety,[7] in the (closely analogous) context of a working with children clearance (which is now also covered by the WS Act), '[n]on conviction matters raise real complexities in the context of the [WS Act] where the paramount consideration is the protection of children from sexual and physical harm'. In that case, the Tribunal was 'unable to be confidently satisfied' that giving a clearance would not pose an unjustifiable risk to the safety of children '[b]ecause of the number of similar allegations from different complainants that have been levelled against Mr Gibbons over the years'.[8]
5. By contrast, in DHU, Senior Member Smithers determined that 'no adverse inference should be drawn against [DHU] in relation to the nursing home criminal charge' (which had been withdrawn before trial) in circumstances where DHU denied the allegation and Senior Member Smithers accepted that he was an 'honest witness'.[9]

Background to Shoplifting Offences and Mercy Allegations

1. On 21 November 2000, Mr Miles was found guilty and convicted in the Albury Local Court of two offences of 'larceny'.[10] He was fined $300, was required to pay costs and enter an 18 month good behaviour bond.[11]
2. The offending occurred on 2 and 3 November 2000 and is described in some detail in a report from New South Wales police included in the Tribunal Book.[12] Essentially, Mr Miles attended Myer in Albury with a group of friends on two consecutive days and stole some branded t-shirts. On the second occasion, he was caught by the store security guards and confessed to the offences on both days.[13]

1. Mr Miles was employed by Mercy as a disability support worker from 15 September 2008 to 18 February 2021[14] and, for most of that time, worked at a SIL residence with five autistic residents ('Relevant SIL'). He had a particular rapport with at least two of the residents, one of whom ('Resident A') had entered the residence shortly after Mr Miles commenced working there. Relevantly, there is no suggestion of any issues with Mr Miles' conduct prior to 2020.
2. In April 2020, changes were made to the roster system used by Mercy, which gave rise to a 'fair work dispute' with its workers, including Mr Miles as a delegate of the relevant union.[15] As a result, Mr Miles contacted various Mercy employees to discuss their perspectives on the roster. In January 2021, one of those employees complained to Mercy that Mr Miles had:
   • used the Mercy staff list to obtain the staff member's phone number without consent; and
   • represented that he was calling on behalf of Mercy and was unprofessional throughout the conversation.[16]
3. The first allegation was found to be unsubstantiated on the basis that Mr Miles had obtained the staff member's details from the union database. The second allegation was found 'partially substantiated' insofar as the staff member complained of Mr Miles' 'unprofessional tone and approach'.[17] The letter from Mercy noted that they regarded a comment that Mr Miles had made to the employee about a 'fair few' employees resigning as a result of the new roster to be 'a misrepresentation' and something that 'contributes to the sharing of false information'.[18]
4. It is relevant to observe that, apart from advising Mr Miles of the outcome, there was no disciplinary action taken by Mercy in relation to the staff member's complaint.
5. In early February 2021, there was a restructure of the team working at the Relevant SIL, resulting in the existing team leader being made redundant, a new team leader being appointed, a number of disability support workers resigning and an inspection of the Relevant SIL being conducted by Mercy's asset manager.[19] At this time, Mr Miles was rostered to work at another Mercy operated SIL.
6. The inspection of the Relevant SIL took place on 12 February 2021 and the asset manager's report revealed that it was in 'an extremely poor state and in need of repairs to damage that has not been reported'.[20] Further, the 'standard of cleaning was poor and [it was] "evident that cleaning practices in place are not being completed on shift".'[21] Among other things, 'mouse droppings [were] found throughout the house'.[22] In addition, the inspection raised concerns regarding the personal care provided to the residents, including concerns about:[23]
   • One toothbrush shared between 5 residents;
   • No current or formal personal care routines in place;
   • Reports that staff were not washing participants or brushing their teeth;
   • Staff theft of household items, staff purchasing food and drink for their own consumption;
   • Lack of meal plans for participants, including failure to provide nutritional diet and mealtime management recommendations;
   • Limited reporting and documentation on incidents, behaviours or injuries in relation to participants at [the Relevant SIL]
   • Staff not reporting to management/Riskman when a participant is injured, bruised, or bitten;
   • No medical follow up on a participant when an injury, e.g. bite marks, are identified by staff.
7. Following the inspection, Mercy appointed an external investigator - Insight Investigations and Mediation ('Insight') - to look into the matters in more detail.[24] The Tribunal Book includes a draft investigation update provided by Insight to Mercy, following interviews of at least 12 staff members ('Investigation Update'). There is no report of the outcome of the investigation. In this regard, the update provided by Insight references some difficulties with obtaining corroborative evidence in circumstances where a number of the disability support workers had resigned before the investigation could be completed.[25]
8. In the interviews with staff, various matters were raised, including the following concerns specific to Mr Miles (note: as the names of the staff members interviewed has been redacted, they are simply referred to by a number corresponding to the order in which their statements are recorded in the Investigation Update):[26]
   • Employee #1: 'Staff watched Netflix all day and did not work/carry out duties/care for residents - ... Nathan (regularly).
   • Employee #4: 'Nathan and [another employee] - don't do duties. Sit on couch on phones, didn't do personal hygiene for participants, as well as grooming, washing, cleaning'. Also, '[o]n one occasion', when 'Nathan on an active [shift]', 'there was a knife jammed in hole where the door knob used to be on [a resident's] door and he was locked inside'. Employee #3 states that either Mr Miles or another employee 'did it' and, although the knife 'was there for an hour', it was not removed.
   • Employee #5: 'Nathan - repeatedly late for shift' and 'Nathan [and other employees] - don't wash participants in shower - leave them and shut the door [and they are] [s]till dirty when they come out of shower'. Further, 'Nathan buys KFC for lunch for themselves and give little portions to participants' and the employee reports having 'see[n] Nathan [and other employees] put chair in front of participants doors' (although it is suggested in the report that this needs to be re-confirmed). Lastly, notes that one resident is 'picky with food' and Mr Miles (and other employees) 'do not encourage him to eat [or] sit with him and makes sure he eats'.
   • Employee #8: Mr Miles is identified as one of the staff:
     • - who 'sits through shifts, do[es] not [take] care of residents/fulfil duties'
     • - who 'neglect participant['s] personal hygiene and leave[s] [the residents] in shower'
     • - 'stealing/eating participant[']s food'
     • - who is 'sneaky' and has 'lost their humanity, [and] don't provide basic care'.
   • Employee #10: reports that Mr Miles is one of the employees who 'watch Netflix [and] be on their phone', although noting that 'all did their duties'. Also suggests that the employee observed Mr Miles and another employee 'shouting/[speaking with] raised voice at participants'.
   • Employee #11: '[p]articipants frightened of [another employee] and Nathan'.
9. Mercy reported the matters arising from the inspection and the employee interviews to the NDIS between 10 and 23 February 2021.[27]
10. A serious incident occurred on the morning of 16 February 2021, when Resident A was found unresponsive on his bed, which he had 'uncharacteristically wet' and 'vomit was found all over his bed'.[28]
11. Further, on 17 February 2021, somebody provided a photo from April 2020 'depicting a chair lodged under a door handle', allegedly a participant's bedroom, with the 'chair [preventing] the door from opening, the purpose being to lock the participants in'.[29]
12. Those matters resulted in further reports by Mercy to the NDIS.
13. Lastly, on or about 28 April 2021, Mercy made a further report to the NDIS concerning another serious incident, namely an injury suffered by Resident A following Resident A's attendance at day program run by Milestones. It was suggested that the injury was abuse 'directly caused by Mr Miles['] action of pushing / shoving [Resident A]'.[30]
14. In a letter sent by the NDIS to the Secretary on or about 15 February 2022 ('NDIS Letter'),[31] the following concerns were raised about Mr Miles, based on the notifications by Mercy:
    • Two incidents of unauthorised seclusion of NDIS customers.[32]
    • Financial abuse in terms of using participant money for food, 'spending approximately $50 on each occasion'.[33]
    • Neglect in terms of:[34]
      1. Ignore work duties

1. Left shift early, or arrived late
2. Failed to perform / support Participants during personal hygiene routines or to eat.

• Abuse in terms of being verbally abusive by shouting and swearing at participants and being physically aggressive in terms of grabbing, pushing and pulling participants.[35]

1. In a submission made by Mr Miles to the Secretary on 5 May 2022, Mr Miles explains that he was 'young and impressionable at the time' of the offending conduct and was 'associating with a group of people who regularly engaged with that kind of behaviour', but ceased to do so after his arrest and conviction. He says that '[i]n the 22 years since ... [he has] never committed an [offence] of any kind including driving offences', having 'learned to consider both [his] actions and the implications of them'.[36]
2. Mr Miles confirmed that position in his oral evidence, which was not subject to any challenge.

1. In his witness statement of 20 April 2023, Mr Miles addresses each of the Mercy Allegations in some detail. Essentially, apart from accepting that he was occasionally late for his shifts (due to border lockdowns during the COVID-19 pandemic), and providing the context in which Resident A was injured on 28 April 2021, Mr Miles strongly denies each of the allegations.
2. In relation to the allegations of unauthorised seclusion, Mr Miles observes that the doors to residents' rooms were changed in around 2016 to enable them to open inwards, which would prevent chairs in front of the doors being used to lock a resident in.[37]
3. Insofar as there is an allegation of financial abuse, Mr Miles observes that he worked night shifts and therefore could not have been there or involved (given the Employee #5's reference to the purchase of KFC for lunch).[38] He also notes that the same allegation was made in relation to Mr Jai Taylor (who also used to work at Mercy and now works at Milestones), who cannot consume KFC given a medical condition from which he suffers.
4. In terms of issues as to neglect of residents, while Mr Miles accepts that he would sometimes watch Netflix, this was only after completing his duties (including cleaning the property) and with residents (to make the environment 'feel like a home and building a relationship with participants').[39] He also explains that there was not one toothbrush shared between the 5 residents, but rather one rechargeable toothbrush with 5 heads, each labelled with a resident's name.[40]
5. With respect to food, Mr Miles observes that Participant A 'does not eat breakfast' and, if forced to do so, 'would always vomit afterwards'.[41]
6. In his oral evidence, Mr Miles explained that there had been a problem with rodents at the Relevant SIL (and which had been reported to Mercy management) but that, as he had been rostered on elsewhere, he could not have been responsible for the state of the property on the date of the inspection by Mercy's asset manager.
7. As for abuse, Mr Miles states that he has never raised his voice at a client 'except in instances of a behaviour' requiring him to tell a resident to stop, that doing so would cause 'assaultive behaviour' and that he reported any abuse issues in the Mercy system (Riskman).[42]
8. In respect of the hospitalisation of Resident A on 11 February 2021, Mr Miles explains that he was notified of the event by another Mercy staff member, as he had not worked at the Relevant SIL since 7 February 2021.[43] He arranged to stay with Resident A at the hospital for 4 nights until Resident A was discharged. He suggests that Resident A had been diagnosed with:[44]

Hyponatremia and Starvation Ketoacidosis due to having not eaten from the 2 days before his admission to hospital because as was later revealed staff that were on had not prepared any food to [Resident A's] texture and food preferences [when the new Mercy staff] decided to change the meal plan that had been in place for several years ...

1. In respect of the injury to Resident A on 28 April 2021, Mr Miles explains that, on the day, Participant A:[45]

had an very unusual behaviour of instant high intensity assault and attempted biting [Mr Miles] while [they] had just gotten into the car where [Resident A] sustained an injury to his eye where [Mr Miles] had to push [Resident A's] face away from biting [Mr Miles'] arm as [Mr Miles] was attempting to undo [his] seat belt to exit the vehicle and it resulted in pushing the thin framed sunglasses [Resident A] was wearing into his eye resulting in marks and bruising ...

1. Mr Miles adds that, once things had calmed down, he proceeded to report the incident to the CEO of the organisation with which he was then working, as well as Resident A's mother.[46]
2. Resident A's mother provided a witness statement dated 13 April 2023,[47] and gave evidence at the hearing, which corroborates Mr Miles explanations regarding these two incidents. It is relevant to note that, following these events, Resident A was 'evicted' by Mercy and is now staying at a SIL operated by Milestones.
3. Mr Taylor also provided a witness statement[48] and gave evidence before the Tribunal. Relevantly, he brought and 'won a bullying and harassment lawsuit against Mercy Connect that is directly involving the same allegations'.[49] He also confirms that all the resident doors at the Relevant SIL 'opened inwards towards the client rooms', such that residents 'were able to lock other[s] out of their rooms but not be locked into their rooms'.[50]

1. In relation to the factors in section 103 of the WS Act, the Secretary submits:
   • the nature, gravity and circumstances of the Shoplifting Offences is 'relatively low, particularly in light of the items shoplifted, and in context', but this factor still 'objectively weighs against the granting of the Application';[51]
   • the length of time since the offending occured 'weighs in [Mr Miles'] favour' given it occurred 23 years ago and Mr Miles 'has not been found guilty of any further offending nor have any charges been entered onto his record since that time';[52]
   • as it was a 'victimless' crime and Mr Miles was not in a position of authority, the factors in section 103(1)(c) to (e) are not relevant;[53]
   • the fact that Mr Miles was investigated for 'alleged conduct that included financial dishonesty' (i.e. stealing food paid for by residents) makes his criminal, misconduct and disciplinary history a 'relevant factor' that 'objectively weighs against granting the application'.[54] This is said to be so because '[a]lthough one [issue of dishonesty, i.e. the Shoplifting Offences] without the other [i.e. taking patient food]' might not raise concerns as to 'a pattern of behaviour', they do 'when taken together';[55]
   • in circumstances where Mr Miles has been 'investigated by his employer for conduct that included dishonesty' and 'resigned from his position prior to [its] resolution', his behaviour since engaging in the conduct 'does not favour the Application being granted in this protective jurisdiction';[56]
   • as for all other relevant circumstances, the Mercy Allegations 'amounted to the Applicant placing NDIS participants at risk of physical harm and/or serious illness';[57] and
   • in respect of any other matter that VCAT considers relevant, reference is made to a letter that the CEO of Mercy sent to the Secretary on 17 August 2022, in which the CEO expresses his 'professional view that Nathan MILES is unsuitable to engage in a risk assessed role'.[58] It is said to be 'noteworthy that the Applicant does not accept any wrong-doing at his former place of work for any matter or allegation'.[59]
2. In relation to the public interest, the Secretary contends that, while there is a public interest in maintaining NDIS services, as Resident A is receiving services from Milestones 'without the direct care of the Applicant', '[t]here appears to be no impetus from that perspective to give the NDIS Clearance to the Applicant'.[60] As such, it is submitted that this 'does not cause the balance to tip in the Applicant's favour'.[61] In closing, Mr Panayi added that Resident A is being 'well looked after and seems to be doing better', and so it was necessary for the Tribunal to balance whether it was 'necessary' for Mr Miles to hold a NDIS clearance with the risks if he is granted such clearance.
3. Mr Panayi maintained that the Tribunal should affirm the Secretary's decision because there are 'still some risks to be considered', albeit that he (candidly) conceded that there is 'not an overwhelmingly strong case against [Mr Miles]'.
4. Mr Panayi also conceded that the witnesses called by Mr Miles 'appear to be honest, forthright and their evidence should be accepted'. However, he suggested that the Tribunal would need to weigh their evidence against the Mercy Allegations and the opinion of the Mercy CEO regarding Mr Miles.
5. As to the Mercy Allegations themselves, Mr Panayi submitted that 'some weight' should be given to the matters raised by the twelve staff interviewed by Insight as part of the investigation of the Mercy Allegations. However, he conceded that some of the matters raised were:
   • 'not substantial or were relatively minor' (presumably the Netflix allegations); or
   • 'factually incorrect' (such as the reference to Mr Miles consuming KFC purchased for residents for lunch).
6. On the other hand, there was at least one allegation which had been 'partially substantiated' (i.e. the inappropriate tone adopted during the phone call to another staff member).
7. Mr Panayi submitted that it did not follow, from the fact that Mr Taylor was successful in his bullying and harassment claim against Mercy, that the same occurred with respect to Mr Miles, despite any overlap in the allegations against them.

1. In closing submissions, Mr Miles reiterated that:
   • the financial dishonesty and the blocking of resident doors 'could not have happened'; and
   • he did not yell at residents, noting that due to their autism, doing so would simply 'escalate' things and make it more difficult.
2. Mr Miles also noted that he had approached the NDIS, asking them to conduct an investigation of the Mercy Allegations, but they had declined to do so because of the time that had passed.
3. In any event, Mr Miles suggested that there was evidence that Mercy had been 'deliberately misleading' in the information provided to the NDIS and the Secretary (e.g. describing the partially substantiated allegation, involving the phone call to another Mercy employee, as involving a 'breach of privacy and confidentiality').
4. As for the public interest, Mr Miles indicated that he has been a disability support worker for some 15 years and, without the NDIS clearance, he would not be able to work with clients. He said that 'disability is [his] passion', noting that he had seen 'marked reductions in [problematic] behaviour' of residents under his care over time. He also pointed to the fact that two former Mercy residents (Resident A and another resident who is the son of a Mercy employee) had chosen to move to Milestones.
5. Further, he suggested that the NDIS clearance was necessary so that Milestones could become NDIS registered.
6. The negative opinion of Mr Miles expressed by the Mercy CEO was based (in part) on concerns as to some of people that Milestones had hired after they left Mercy (because of similar allegations from their time at Mercy). In this regard, Mr Miles noted that, despite those matters, three of the former Mercy employees had received their NDIS clearance, while the co-founder of Milestones has a separate review application before the Tribunal.[62]

Does Mr Miles pose an unacceptable risk of harm to persons with a disability?

1. Having regard to the factors in section 103(1) of the WS Act, I am comfortably satisfied that Mr Miles does not pose an unacceptable risk of harm to persons with a disability.
2. In terms of factors (a) and (b), the nature, gravity and circumstances of the Shoplifting Offences are not of a nature that might suggest that Mr Miles poses any risk to persons with a disability. While I accept that larceny raises questions of 'dishonesty', they do not appear to have been premeditated acts involving careful planning, but rather opportunistic thefts by a young man exposed to bad influences. In any event, the time which has passed, without any other offending (of any kind), speaks to successful rehabilitation.
3. I agree with the Secretary's submissions that factors (c) to (e) are not relevant in this case.
4. In relation to any pattern of behaviour relevant to factor (f), the Secretary concedes - appropriately - that the allegation of dishonesty in terms of stealing residents' food is not made out on the evidence before the Tribunal.
5. I consider it appropriate to consider the evidence in relation to the remaining factors, i.e. (g) to (i), holistically.
6. Of the Mercy Allegations, the only one that has been found to be substantiated is the tone used in a discussion with a co-worker. In my view, that is not evidence that Mr Miles poses a risk to persons with a disability. The manner in which a person engages with colleagues may well differ from the manner in which they deal with clients. That Mr Miles understands how to deal with his autistic clients is evident from his own evidence before the Tribunal and corroborated by the evidence of the mothers of the two residents that have moved to Milestones. In these circumstances, I accept his evidence that he would never shout at clients or residents as this would be counter-productive.
7. The most concerning allegations raised by Mercy relate to the hospitalisation of Resident A on 11 February 2021 and the injury to Resident A on 28 April 2021.
8. In relation to the former, I accept Mr Miles' explanation that this occurred at a time when he was not working at the Relevant SIL and was a consequence of changes in Resident A's food plan initiated by other parties. His explanation is corroborated by the evidence of Resident A's mother, as well as the report of the Mercy dietitian included in the Tribunal Book.[63] If Mr Miles had been responsible, it is highly unlikely that he would have agreed to stay in hospital with Resident A for four days.
9. The injury to Resident A is of concern. That said, it is clear that Mr Miles did report it promptly to both his then employer and to Resident A's mother. While Mercy described it an 'assault', I note that Resident A's mother has accepted Mr Miles' explanation of the circumstances, suggesting that she was 'happy with what happened'.[64] That she has put her son into the care of Milestones despite that incident is a strong indicator that Mr Miles' conduct was not inappropriate.
10. That the most significant of the Mercy Allegations have not been established on the evidence before the Tribunal means that, despite the number of staff interviewed by Insight, I can only place limited weight on their recollections.
11. I do not place any weight on the negative opinion expressed by Mercy's CEO as to Mr Miles' suitability for any risk assessed role. I am not prepared to draw any adverse inferences about the CEO's motivations in circumstances where I have not heard from him. However, there is at least evidence to suggest a breakdown in the relationship between Mercy and Mr Miles (and others) in 2020 to 2021 (i.e. in terms of the roster disputes and the change in the team at the Relevant SIL) which may have produced some level of animosity.
12. In any event, there is no evidence as to the CEO's qualifications to form an opinion as to a person's suitability for 'risk assessed work', and reason to doubt the underlying basis for his opinion in circumstances where a number of the allegations he apparently relied upon have been disproved.

Is it in the public interest to grant an NDIS clearance to Mr Miles?

1. I consider there is a public interest in having competition amongst businesses in providing NDIS services so that participants have an effective choice as to their provider, particularly in regional areas. While it seems that Milestones has been able to obtain approval from NDIS to fund the care of Resident A and the other former Mercy resident despite Milestone being an unregistered provider, there is presumably no guarantee that such approval would be forthcoming for any other residents.
2. Further, I accept Mr Miles' submission that it is unlikely that Milestones would be able to gain accreditation as an NDIS provider unless and until its principals and key employees hold NDIS clearances.
3. Further, I also note Mr Miles' extensive experience in the disability sector and his strong rapport with both of the residents that transferred from Mercy to Milestones. In my view, it is appropriate that he be able to resume working directly with those residents.
4. Accordingly, I consider there is a public interest in granting an NDIS clearance to Mr Miles (albeit that it is unlikely Milestones will be able to obtain NDIS registration unless and until the co-founder of Milestones also obtains his NDIS clearance).

1. In light of these findings, and as indicated at the outset of these reasons, the appropriate orders are to set aside the Exclusion Decision and direct the Secretary to issue Mr Miles with a NDIS clearance.

[1] [2022] VCAT 1006 [85].

[3] [2022] VCAT 1006 [22].

[4] WS Act, s 27(1)(e) (coupled with the definition of 'relevant disciplinary or regulatory finding' (WS Act, s 3(1)) and r 9(1)(e) of the Worker Screening Regulations 2021).

[5] [2022] VCAT 1006 [31].

[7] [2020] VCAT 838 [78] (emphasis from original).

[9] [2022] VCAT 1006 [87].

[14] Letter from Mercy to respondent dated 17 August 2022: TB, 63.

[15] Statement by Nathan Miles dated 20 April 2023 ('Miles WS'): TB, 175 [3].

[16] Letter from Mercy to applicant dated 8 February 2021: TB, 114-115.

[19] Draft Investigation Update by Insight Investigations and Mediation (undated): TB, 18 [2.4]-[2.6].

[27] Letter from Mercy to NDIS dated 9 June 2021: TB, 13.

[30] Letter from Mercy to NDIS dated 9 June 2021: TB, 14.

[51] Submissions of the Respondent dated 10 October 2023 ('ROS') [24]-[26].

[62] The parties advised that this was listed for hearing in December 2023.