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The NDIA has always had the power to remove people from the NDIS if they no longer meet the eligibility criteria. But with the government’s renewed focus on eligibility reassessments, the NDIA’s processes for reassessing people’s eligibility must be fair.
The new NDIS Act gives the NDIA new powers to request ‘reasonably necessary’ information to determine whether someone is still eligible for the NDIS (we cover this more in our article: NDIS Act Explained: Eligibility reassessments). Under this new law, a person has 90 days to provide requested information. After this period, if the requested information isn’t provided - or the person doesn’t have a valid reason for not providing it - the NDIA can revoke a person’s access.
Since we last covered this topic, there have been two important developments: the NDIA has updated their operational guidelines on eligibility assessments and the new Administrative Review Tribunal has made some important decisions on the matter. Let’s explore more.
Eligibility reassessment letters
The NDIA sends eligibility reassessment letters to inform people when they are reviewing if they are still eligible for the NDIS. The letters might also request information to help inform the decision or give the person the opportunity to provide any information they think is relevant.
During a Senate Inquiry late last year, the NDIA revealed it was sending eligibility reassessment letters to approximately 1250 people per week. The NDIA also told the Senate this number will remain a target going forward. Just under half of the people reassessed were removed from the Scheme. People on the Early Intervention Pathway (mostly children) accounted for 80% of eligibility reassessments. The NDIA said that most referrals for eligibility reassessment came from Partners in the Community.
The community’s concerns about eligibility reassessment letters can be summarised in three ways. First, the NDIA was previously giving people just 28 days to acquire evidence before having their eligibility revoked, not the 90 days specified in the new legislation (the NDIA argued at the time that if they weren’t requesting specific pieces of information, they didn’t need to provide 90 days). This simply didn’t give people enough time to gather reports. Second, the letters didn’t state which parts of the access criteria the NDIA thought the person no longer met or what evidence would address their concerns. Thirdly, foundational supports haven’t been set up yet, so people found ineligible don’t have access to alternative supports.
NDIA alters policy
In February 2025, a CEO statement, ‘listening to the community – eligibility reassessments’ said the NDIA will change how they conduct eligibility reassessments, in response to community concerns.
According to the NDIA Legislation FAQ’s, the new letters:
- Tell you an eligibility reassessment has started, and why
- Are clearer about the information you wish to provide
- Tell you that you have 90 days to supply this information
We don’t know yet how the NDIA will make eligibility letters ‘clearer.’
Tribunal explores procedural fairness
The new Administrative Reviews Tribunal (ART) recently explored the legality of the NDIA revoking someone’s NDIS eligibility, without providing them a chance to secure good and tailored evidence, in the case Stephan-Miller v NDIA.
Veronica Stephan-Miller entered the Scheme under a transitional agreement between her state government and the Commonwealth. Last year, Veronica received a 10 page eligibility reassessment letter stating she may no longer meet the eligibility criteria and requesting evidence. In September 2024, Veronica’s access to the Scheme was revoked. Shortly after, Veronica won a ‘stay order’ at the Tribunal, which is a legal term for hitting pause on a government decision. Veronica’s access was reinstated (with some spending boundaries), while Veronica collected more evidence for the Tribunal to make an eligibility decision.
Speaking to fair process concerns, the Tribunal Member said ‘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.’ In other words, the Tribunal is suggesting the onus might be on the NDIA to prove Veronica is no longer eligible for the NDIS; not on Veronica to prove her continuing eligibility. However, importantly, these remarks don’t constitute a legal decision, as the responsibility to provide evidence wasn’t the question before the Tribunal (whether to grant a stay was).
As Annie Nash, the CEO of Villamanta Legal Service which supported Veronica, said “The Tribunal decision for Veronica Stephan-Miller suggests that the onus of proof should be on the NDIA, not the recipient - before revoking any previous decisions around funding for services and supports”.
The Tribunal also said that, as NDIS supports can be integral to people’s lives, removing these supports should be approached with ‘good procedure and solid evidence.’
Implications
It is not clear whether the Agency will change its approach to eligibility reassessments based on these decisions. They aren’t under a legal obligation to, as each matter is decided on its own facts and a Tribunal could decide differently for another participant.
But what might it look like if the NDIA did prioritise procedural fairness in eligibility reassessments in line with the Tribunal’s remarks? It may include letting participants know which specific criteria the NDIA believes the person no longer meets and why. It could also mean giving people sufficient time to collect the requested evidence. Once all the right evidence is before the decision maker, then - and only then - could the Agency decide to remove someone.
As Veronica said in a statement to me, ‘the decision made regarding my stay application is encouraging because, to me, it signifies the Tribunal is concerned with procedural fairness. Every person deserves a fair process.’
The NDIS has since released a fact sheet on eligibility reassessments.
Disclaimer
This is general information only, not legal advice. Seek legal advice from Legal Aid or advocacy from Ask Izzy.
