A tribunal has questioned whether it is lawful for the National Disability Insurance Agency to require that participants provide renewed evidence of their eligibility before revoking their access, describing the approach as “troubling”.
The administrative review tribunal on Wednesday granted a 54-year-old Melbourne woman with disability, Veronica Stephan-Miller, the right to continue accessing the national disability insurance scheme while she appeals against the agency’s decision last year to remove her from it.
Stephan-Miller has fibromyalgia, chronic fatigue syndrome, ischaemic heart disease and ankylosing spondylitis, and uses a wheelchair. She has been an NDIS participant since 2019.
Since 2023, after she requested a review of her plan due to a change in her circumstances, she has been negotiating with the NDIA on her eligibility. A disability pensioner, she struggled with the financial burden of trying to comply with the NDIA’s requests, turning to crowdfunding to pay for some assessments to prove her eligibility.
Stephan-Miller argued at the tribunal in December that if she had failed to provide requisite evidence for her disability, it was because the NDIA had not specifically asked her for the evidence they needed, nor explained the reasons her specific eligibility had changed. She told Guardian Australia she had received a detailed list of the evidence the NDIA had and required only after they had already revoked her access to the scheme, and upheld that decision in an internal review.
“It’s been a very exhausting process,” Stephan-Miller said. Since her access was revoked in 2024, she has been in financial distress, struggling to afford the support she requires for day-to-day needs such as cooking, cleaning, and personal care.
The process had also taken a severe emotional toll. “[At one point] I actually stopped eating without realising,” she said.
She applied to the tribunal to retain access to the NDIS while her eligibility case went to appeal.
In a sharply worded decision, the tribunal said: “The manner in which the [NDIA] has approached the revocation in this case is troubling.”
The NDIA had internal advice on 3 September last year to seek further evidence of Stephan-Miller’s functional mobility impairments, the tribunal heard, as what they had on file was “inconclusive”. They did not seek this information – but six days later, decided she no longer met the access criteria, and cut her off on 7 October.
“The NDIA could have obtained an independent functional assessment of the Applicant in response to this advice, rather than revoking her access,” the tribunal said. “There was no impediment to it doing so … It is arguable that this would have been the best procedural course.”
The NDIS Act was “beneficial legislation”, and the wholesale removal of those benefits was “a matter to be approached with good procedure and solid evidence”, the tribunal said, noting that the loss of services to a vulnerable person was far more serious than the cost of continuing to provide them while eligibility was properly determined.
The tribunal questioned the legal basis for the agency reversing the onus of proof on to the recipient when it was considering revoking benefits, noting there were cases suggesting the burden of proof should be the other way around.
“It is entirely possible, as a matter of law, that it is therefore the NDIA’s responsibility to obtain evidence before revoking an access decision, rather than the Applicant being required to provide it,” the tribunal said.
The decision comes after the NDIA acting chief executive, Scott McNaughton, told Senate estimates in November that the agency was reassessing the eligibility of approximately 1,200 NDIS participants every week, and revoking access for nearly half of them.
Jeff Smith, chief executive of Disability Advocacy Network Australia, said there was widespread fear and anxiety among people with disability about their NDIS eligibility under the changes to the legislation last year, and advocates had reported similar instances to Stephan-Miller’s of NDIS access revocation around the country.
He said the tribunal decision was evidence that the NDIA needed to slow down. “This is a process that they should not have followed,” Smith said. “[Stephan-Miller’s] eligibility, or otherwise, was inconclusive, and yet they went ahead with a revocation.”
Smith said while the NDIA had made “enormous gains” in changing the culture of their approach to participants, “there is still a cultural problem” in some areas.
“The facts that sit under this decision do evidence concern about the way that parts of the agency are going about their work,” Smith said. “We do need to hasten slowly so that we can make the changes [to the NDIS] that we need to make, but also ensure that people with disability are not left behind.”
The tribunal decision came amid a federal cabinet reshuffle, with the NDIS minister, Bill Shorten, announcing on Thursday that he would leave office nine days ahead of schedule, and that the social services minister, Amanda Rishworth, would wrap the NDIS portfolio in with her other duties, which include overseeing the implementation of foundational supports.
Shorten declined to comment and referred the Guardian’s questions to the NDIA.
A spokesperson for the NDIA said it was unable to comment on Stephan-Miller’s case as the tribunal had not made a final decision on the matter of her eligibility.
The spokesperson said there had been no changes to how the agency assessed eligibility for the NDIS. “The NDIA continues to make all decisions in accordance with the NDIS Act, and has an obligation to ensure the proper administration of the NDIS Act in ART matters,” they said.
Stephan-Miller said she hoped others in a similar situation would be galvanised by the tribunal’s interim decision.
“I don’t know if I’m still eligible with all the changes they’ve made [to the NDIS], but … how they’ve handled things with me, they did the wrong thing.”
