Last updated 1 June 2025

The National Disability Insurance Agency (NDIA), as a Commonwealth agency, is bound to apply the law and must be satisfied the legislative criteria are met before granting a person access to the National Disability Insurance Scheme (NDIS) or approving funding for a requested support. It is for this reason that the NDIA requires independent evidence from experts upon which it may base its assessment about a person’s eligibility to access the scheme and/or their reasonable and necessary supports.

However, the gathering of recent, relevant and sufficiently detailed evidence can be burdensome for people with a disability seeking access to funded supports. A person may have difficulty securing necessary evidence because of their disability and/or because of the cost involved.

Independent medical examinations, which typically involve an assessment by a therapist or specialist commissioned by the NDIA, can be helpful to address gaps in evidence. It is relevant to note:

  • a person cannot be directed to participate in an assessment (see Liddle and National Disability Insurance Agency [2018] AATA 5071 (7 June 2018), in which the tribunal refused a request of the NDIA to direct a person to undergo an assessment by an occupational therapist)
  • while in some cases the tribunal has ordered proceedings be stayed until a person voluntarily agrees to participate in an assessment, the Federal Court of Australia in Andrews v National Disability Insurance Agency [2025] FCA 272 noted that whether the tribunal could stay a review in these circumstances was ‘open to serious doubt’ (at [29]).

The tribunal in Brown and National Disability Insurance Agency [2024] AATA 3318 considered the responsibilities of parties to provide evidence in an appeal by Mr Brown for reinstatement of previously funded supports. Mr Brown contended that his circumstances had not changed and therefore he ought not be required to provide information nor participate in an independent medical examination. The tribunal commented on the obligations of the parties to assist the tribunal to reach the correct or preferable decision, noting (at [56]), while Mr Brown was entitled to refuse to participate in an independent medical examination, the tribunal would have been better assisted had he done so. In relation to the NDIA’s obligation, the tribunal noted ‘… when a participant is requesting maintenance of supports previously found to be reasonable and necessary, there is a responsibility on the Agency to base their reassessment on probative information that can be provided to the Tribunal. If that information gathering has not occurred during the assessment and internal review process, there is a responsibility on the Agency to address these information gaps during the Tribunal review process’ (at [46–51]).