The federal government spent more than $60m on private law firms to fight national disability insurance scheme participants appealing decisions about their packages last financial year, a 60% increase from the year before, Guardian Australia can reveal.
The National Disability Insurance Agency paid $60.7m to six external law firms in 2024-25 to represent it at the administrative review tribunal (ART), figures released under freedom of information show.
This was up from the $37m it spent on external law firms for tribunal representation the previous year.
The fees pay for lawyers, including barristers and partners from some of Australia’s largest law firms, to represent the NDIA against people with a disability and their families, who are appealing funding cuts they’ve received to their NDIS packages.
Most NDIS participants are self-represented, the latest figures from the tribunal show.
NDIS participants and lawyers representing them have told the Guardian about the exhausting, time-consuming and intimidating process of facing questioning from barristers and filing legal submissions.
Tina and Ben* have spent the last nine months locked in a legal fight with the NDIA, contesting the package of support it approved for their two-year-old daughter, Anna*. Their real names can’t be used for legal reasons.
Anna has a rare genetic condition, and although she is almost three, she cannot stand or walk unassisted, tires easily and is behind in her speech and other milestones.
“Because there’s so few people with the condition, it’s very difficult to know what the clinical outcome [will be],” Tina says.
But among children with the condition who have been studied, all have speech delay, none could walk unassisted and some had intellectual impairment.
Anna’s doctors told Tina and Ben that, given how severe and clearly defined her condition was, it would be straightforward for her to get support through the NDIS.
But when her package was approved, the support was barely more than half that recommended by their medical team – about $25,000 compared with the $45,000 they were requesting (which has since gone up to $55,000).
Recommendations by Anna’s medical team – seen by Guardian Australia – for the child to have weekly hour-long physiotherapy, speech therapy and occupational therapy sessions, as well as intensive therapy, and for her to receive funding to buy some mobility aids, were rejected, and a smaller number of hours for treatment, as well as cheaper aids, were approved.
“It just seemed like such a basic and obvious thing to provide her that we didn’t think that there was going to be any issue,” Ben says. “And so then to have them come back … [and say] ‘it’s excessive, it’s not necessary, and it doesn’t represent good value for money’, which is the test under the legislation, is hard to understand.”
Tina and Ben filed an internal review to have the plan re-examined but the reviewer backed the original decision. So, earlier this year they pursued the only option left and filed an appeal at the administrative review tribunal.
Tina and Ben are both lawyers but say that even for them, the tribunal process has been overwhelming, as well as time-consuming. They have filed hundreds of pages of submissions, including reports from more than half a dozen medical experts, and have spent months responding to legal queries from the lawyers representing the NDIA and attending conciliation meetings. The couple fit the legal work in around their jobs, caring responsibilities and Anna’s medical appointments.
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“Given the forceful and really litigious way that they are defending this, I don’t think it would be possible to navigate this competently without a strong legal background,” Ben says.
Tina says the tribunal process has felt “really antagonistic”.
“They’ve also engaged a barrister! The tribunal is supposed to encourage self-representation, and they have a barrister.”
‘Fighting so hard’ for NDIS payments
Tina says they feel mystified that they have had to fight so hard for support that Anna’s medical team have recommended.
“We just can’t figure it out because, to us, Anna is just so deserving. She’s so young; so everything that is offered to her now is going to mean that she’s less dependent on the system in the future … which is, I guess, part of the reason we’re fighting this so hard, because we just think that this is such an important time for her to get as much support as she needs.”
The executive director of National Legal Aid, Katherine McKernan, said: “The process is complicated and daunting for people with disability and their carers to navigate without legal assistance.
“Burdensome requirements for the amount and type of evidence, and the extent to which the NDIA is represented by lawyers, means that NDIS applicants often need legal support to level the playing field.”
But the amount provided by the government for NDIS users to access legal advice and representation is a tiny fraction of the amount spent on lawyers for the NDIA.
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Neither the NDIA nor Senator Jenny McAllister, the minister for the NDIS, responded to questions about how much funding was provided through the government’s NDIS appeals program to help NDIS users access legal representation or advice. The government announced $7.3m in “supplementary funding” for the program for 2025-26 – just 12% of the amount spent on external counsel for the NDIA in the last financial year.
Demand has ‘never been this bad’
The number of cases of people, like Tina and Ben, appealing NDIA decisions to the tribunal has surged over the last year, reaching their highest rate since June 2022, when soaring appeal rates prompted fierce condemnation from the then opposition Labor party.
In the 12 months to the end of June 2025 there were 7,132 new cases brought before the administrative review tribunal of people appealing decisions by the NDIA, a 76% increase on the year before (4,044 appeals in the year to June 2024). It is the highest number since the peak in 2021-22 of 5,935 cases.
An NDIA spokesperson said: “Our staff are making more decisions than ever before. This increase in decisions has led to an increase in reviews.
“Where a person exercises their right to seek external review we seek to resolve these as quickly and fairly as possible. 96% of ART matters are resolved prior to a substantive hearing in the tribunal.”
The increase in reviews and appeals is not just a matter of there being more participants in the NDIS.
The current rate of new appeals, when compared with NDIS participants, was 1.025% for 2024-25, significantly up on the previous two years (0.63% for 2023-24 and 0.76% for 2022-23) but slightly lower than the previous peak in 2021-22 of 1.185%.
Naomi Anderson, legal practice manager at Villamanta Disability Rights Legal Service, says inquiries to the service have more than doubled in the last year.
“The numbers have surged,” Anderson says, adding that demand has “never been this bad” – including during the last peak of cases three years ago. “We thought it was bad then. We didn’t know what was coming.”
In 2022 Bill Shorten, then the shadow NDIS minister, condemned the massive increases in NDIS appeals and government spending on external lawyers as “a form of ‘lawfare’ … against participants” that was “causing suffering and stress” and announced that a newly elected Labor government would launch an investigation into the tens of millions in legal costs being spent on external services within its first 100 days in office.
Shorten’s comments were put to McAllister, who did not respond as to whether she believed the current increase in appeals and government spending on lawyers for the NDIA meant the Labor government was engaging in “lawfare against participants” or whether an investigation should be launched.
The minister said: “The NDIA makes decisions in accordance with the NDIS Act to deliver reasonable and necessary supports to participants in the scheme.
“When a participant asks for a review of an NDIA decision, the agency will work respectfully, honestly and fairly with both the participant and with the tribunal. The NDIA also aims to resolve these situations as quickly and as fairly as possible.”
An NDIA spokesperson said the agency “continues to support [Anna] to access the disability-related supports she needs. As the matter is before the administrative review tribunal it would be inappropriate to comment further.
“While our trained NDIA staff consider all recommendations from health professionals, these recommendations must also meet the reasonable and necessary criteria in line with the NDIS Act.”
Do you know more? Contact kate.lyons@theguardian.com
