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In its efforts to cut costs, the agency running the NDIS has taken an adversarial approach that has left participants exhausted and independent reviewers appalled. By Rick Morton.
Combative NDIA’s ‘appalling’ impacts
The incidence of Australians forced to fight the National Disability Insurance Scheme for support funding has reached levels not seen since the end of the Coalition government. Their treatment has left independent reviewers of the appeals process “appalled”.
In several decisions over just the past two months, the new Administrative Review Tribunal (ART) has accused the National Disability Insurance Agency of breaching its own legal obligations to conduct risk assessments for harm caused to participants by funding decisions. In one case, the agency ignored the condition of a man who had a seizure while giving evidence at the tribunal.
At the start of his tenure in 2022, then NDIS minister Bill Shorten criticised the NDIS appeals process as “broken”, with a backlog of contested decisions clogging the tribunal. He noted that under the Coalition government, “the number of participants in the NDIS seeking external review of planning decisions increased by 400 per cent” and the decisions were “opaque and unaccountable”.
Shorten initiated a trial of independent expert reviewers to shadow the appeals process. The aim was to find a more efficient way, liaising with participants of the scheme, to reach decisions that were legally and ethically correct. Contested cases fell to 0.42 per cent of active NDIS participants by the first quarter of last year, but by then the independent trial had ended and substantive reform was abandoned.
Now, the campaign to cut NDIS costs has seen a more combative and ruthless approach by the agency. By the December quarter of 2024, the proportion of new tribunal reviews had doubled, with 1.1 per cent of 690,000 active participants awaiting an agency decision. It’s the highest proportion of such matters since March 2022 under the Coalition.
This figure shocked one of Shorten’s independent expert reviewers, Marg O’Donnell. She and three other reviewers wrote a separate submission in August 2023 to the NDIS Review, which declared the agency had used tactics of legal brinkmanship to “exhaust” participants, to prevent them from being funded for support to which they were otherwise entitled.
“Our report was completely ignored,” O’Donnell tells The Saturday Paper.
“The process has been completely abandoned and it has left a very bad taste in a lot of people’s mouths who did that [review] work. We got the impression the NDIA didn’t like it, they thought it was a folly, that we had been somehow undermining the original decision-making inside the agency.”
On April 16, the new ART released a decision in the matter of a five-year-old girl with the most severe form of cerebral palsy, who agency and family alike agree requires around-the-clock care to keep her alive.
The NDIA had decided the girl did not need the clinical expertise of a registered nurse (RN) on shift, or “duplicate” forms of support such as hydrotherapy in addition to physiotherapy. It proposed shifting the care to a delegated model staffed by “high intensity support workers” with no daily RN support and rejecting art and music therapy because the young girl “enjoys” them, which it argued meant they could not be therapeutic.
The tribunal rejected this argument as “concerning”.
“I am concerned that the risks to [the girl]’s safety are very high. There is no indication that the agency has given consideration to the best interests of the child in this matter,” general member Justin Toohey found.
“There is also no indication that the Agency has assessed the risks and safeguards in relation to [the girl] as required by Rule 4.1(c).”
Toohey granted an increase in registered nursing hours and the therapy that experts recommended. He admonished the NDIA for taking an “adversarial approach which was directed at defending their [original] decision”.
“[T]he agency should consider whether their conduct in this matter was consistent with good practices in taking a trauma-informed approach and supporting participants and their families in all their dealings with the agency,” he wrote.
Moreover, he expressed concern that the agency hadn’t complied with specific directions of the tribunal in providing key documents supporting the hearings.
In a separate case, a 64-year-old man with multiple disabilities, Gordon Paul, was granted access to the support scheme only after fighting for it at the tribunal. The situation was so stressful it put him in hospital.
“My observations of Mr Paul as he gave evidence was that he was struggling throughout the hearing,” general member Adrian Williams wrote in his decision.
He noted that Paul “had only been discharged from hospital some three days before the hearing after a 12-day admission and was again readmitted for a further four days after experiencing the seizure while giving evidence.”
Hospital notes made on Paul’s admission, following his being taken from the tribunal by ambulance, reported a “functional neurological disorder” and that “this episode and previous episodes appear to be around times of stress.”
Paul was self-represented at the hearing with the help of a disability advocate, whereas the NDIA had briefed counsel Nic Edmondson and corporate law firm Maddocks. They argued Paul’s evidence lacked credibility because he was “evasive” – a contention rejected by the tribunal.
Williams wrote that the NDIA’s lawyers made no references in their final submissions to the circumstances of Paul’s interrupted testimony. “They also did not refer to his subsequent admission to hospital. I consider these to be serious omissions given the serious assertions in the closing submissions.”
Appeal reviews at tribunal represent the first external chance participants have to test the internal decisions of NDIA officials. As such, the stakes are high, and the agency knows this. In the financial year 2023-24, the NDIA spent $60 million on external legal advice, almost all of it – $53 million – for counsel and lawyers during tribunal appeals.
Most participants face the process on their own, as they can’t afford lawyers or secure representation via community legal services such as Victoria Legal Aid.
“It is a big deal for a lot of people to even think about taking something to a tribunal,” Marg O’Donnell says. “A lot of the participants that I spoke with were resolute, but they were scared, too. It was occupying a lot of emotional space for them. Asking themselves, ‘What will I say at the tribunal? What if I don’t win at the tribunal?’
“Some of us were appalled by what we saw them go through.”
This longstanding confrontation for participants has been rendered even more daunting and uncertain as the ART is now required to take into consideration legislative reform of the scheme, which took effect in October last year and introduced several mechanisms that allow the government to dramatically cut costs. New rules stipulate the types of things that are and are not considered NDIS supports.
In one case, an Indigenous man in his 20s who lives in regional Queensland with “significant impairments” had secured agreement from the agency for the purchase of a second-hand vehicle, with modifications to accommodate his disability. While those modifications were being made, he had also requested the lease of a modified car for six months. Negotiations over the cost dragged on past October 3, at which point the agency rescinded the deal.
“The agency updated its position to advise that it was no longer able to fund the purchase of a vehicle. The Applicant expressed strong concerns that the Agency had engaged in ‘tactical behaviour’ in delaying agreement on this issue,” the tribunal wrote in its decision.
Ultimately, the tribunal agreed the new rules were more explicit but rejected the agency’s argument it could not fund the hire car.
The latest NDIS Act amendments have also introduced official impairment categories, and stipulate that funding will be provided only for needs arising from impairments for which a person has been found eligible under the NDIS.
This is relevant to the tribunal case of Lee Eastham – a participant because he is almost blind and has hearing impairments. The agency rejected his request for a mobility scooter to allow him to travel the 1.1 kilometres into town in regional Victoria because, it claimed, the need arose from physical impairments that did not meet the threshold of NDIS eligibility.
The tribunal found that Eastham’s need actually arose due to both impairments. Because of “environmental factors” relating to the man’s location and the fact he is unable to legally drive a car on account of his primary disability, the tribunal granted the request the agency had blocked. Concerned about this precedent, NDIA officials launched an appeal of the tribunal decision in the Federal Court of Australia at the end of March.
Contrary to the favoured narrative of fraud and rorting, the vast majority of $19 billion scheme savings over the next four years will come from the latest rule changes, though the agency is still withholding its modelling.
“Stabilisation of cost growth has primarily been achieved to date through reducing plan inflation and reducing the risk of overspending of plan budgets,” a spokesperson said.
If the new regime sounds complicated, it is. Not even the agency knows how to interpret some of its policies. Before Christmas, the NDIA tried to block music and art therapy from the scheme but faced a backlash.
That led to a series of farcical events as the agency attempted to remove promised flexibility from some participant plans.
Just before Anzac Day, therapists welcomed the NDIA’s update to the frequently asked questions on its website to clarify that the funding was flexible within its category. Three days later, the website was changed again to revert to the original inflexible definition of “stated support”.
Finally, the relevant question was removed from the agency website.
Disability and mental health advocate Tanya Carroll tells The Saturday Paper that the changes will put disabled people “back in a box”.
“They want to take us back to block funding, which we had before the NDIS, and it is wrong, it is degrading,” says Carroll, who works with Australian Disorders of the Corpus Callosum (AusDoCC).
“What happened to our choice and control? My plan has been automatically rolled over and I didn’t get to ask for any of the things I planned because nobody called my mobile phone.”
The uncertainty is more pronounced for those who have been kicked off the NDIS before the establishment of much-promised “foundational supports” by states, territories and the Commonwealth. One of the government’s most senior ministers, Senator Katy Gallagher, incorrectly told an advocacy event earlier this month that nobody has been removed from the scheme.
“I have just checked while I am on the call and my advice is that is not the case. Nobody has been kicked off the scheme,” she told the Advocacy for Inclusion ACT town hall on April 16.
“We are very clear that we want those foundational supports in place.”
Gallagher was in Senate estimates last year when the NDIA revealed that thousands of people were being removed every quarter, and the value of the savings in one quarter alone was $125 million. A spokesperson for Gallagher clarified that the minister had meant to say nobody has been removed from the NDIS “as a result of legislative reforms”.
This article was first published in the print edition of The Saturday Paper on May 3, 2025 as "‘Wrong and degrading’".
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