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Was the NDIS required to fund the cost of a sex worker for a woman with severe disabilities? Which case won?
20 Oct | Which Case Won

Was the NDIS required to fund the cost of a sex worker for a woman with severe disabilities? Which case won?

by Anneka Frayne, Tamworth and Kelly Brown, Tamworth

The Facts

Woman becomes eligible to participate in National Disability Insurance Scheme

Seventeen years ago, a woman referred to as “W”, who is now in her forties, was diagnosed with multiple sclerosis (MS).

In 2016, she applied to participate in the National Disability Insurance Scheme (NDIS) and was accepted as an eligible person.

The NDIS is a statutory scheme set up under the Commonwealth National Disability Insurance Scheme Act 2013 (“the Act”) to provide funding for support and services directly to eligible persons with disabilities.

Once a person becomes eligible, a plan is created outlining their goals, the support needed to help achieve those goals, and the funding to be made available to them for “reasonable and necessary supports”.

The plan must be approved by the National Disability Insurance Agency (NDIA).

Woman’s request for funding for cost of sex worker denied by NDIA

Due to her MS, W walks with difficulty and with the assistance of strong MS drugs.

She does not work and her main source of income is the disability support pension.

The NDIA provides her with the services of a carer to attend to her physical needs.

Prior to being diagnosed with MS, W had an active sex life.

However, due to her MS, sexual release of any kind is now highly unlikely without specialised assistance.

In her NDIS plan, W requested funding for the services of a sex worker.

The NDIA denied the request.

Woman challenges NDIA decision

W sought an internal NDIA review of its decision to decline her request.

The internal review upheld the NDIA’s decision, saying that the requested funding did not meet the funding criteria under the Act.

W appealed the decision to the Administrative Appeals Tribunal.

The Tribunal ruled in her favour, concluding that the NDIA was required to fund her request for the support of a sex worker.

The NDIA appealed the Tribunal’s decision to the Federal Court.

casea
The case for the NDIA
  • The use of a sex worker does not meet the criteria for a “reasonable and necessary support” under the Act. Therefore, we are not authorised to provide funding to W for this purpose.
  • As we told W in our letter to her, the requested support does not meet the criterion of reflecting what is reasonable to expect the community to provide. Sexual activities are activities all Australians decide on whether they would like to pursue or purchase. It is not a disability-specific need. It is not the role of our agency to provide W with a replacement sexual partner.
  • If W needs assistance achieving sexual release, she is able to use sex toys, perhaps with instructional assistance from an occupational therapist.
  • If instead W chooses to use a sex worker, she is able to pay for those services using her disability support pension. Her NDIS funding can still be used to pay for a support worker to assist her to travel there and back.
  • Even if the court finds that W’s request for a sex worker meets the criteria in the Act, those criteria are merely a set of minimal requirements to consider before potentially providing funding. We are not required by the Act to fund supports simply because the criteria have been met.
  • Equally important is the financial sustainability of the NDIS. The provision of sex workers is not a cost we have previously factored in or budgeted for under the scheme. In the event that there is a significant uptake of this suggested support, the financial burden on the NDIS could affect the scheme’s viability.
  • The court should uphold our original decision to deny funding to W for a sex worker.
caseb
The case for W
  • The NDIA seems to think that I’ve requested funding for a prostitute. I have not, and such services would be of no use to me anyway.
  • I have requested funding for a skilled sex therapist, trained in providing sexual services to clients with disabilities.
  • I am unable to “pursue” a normal sex life like other Australians, as the NDIA suggests that I should. My disability makes it impossible to find a partner in the community.
  • Even if I could find a partner, it’s unlikely that she would be willing or able to provide the kind of services that I require in order to climax. Nor would I be able to sexually stimulate her. I have shared the reasons for this in my confidential evidence to the court and do not propose to elaborate here.
  • The Act enumerates principles for guiding the NDIA’s actions and decision making. One of these principles is that people with disabilities have the same rights as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development. The support of a sex worker helps me to realise these rights.
  • I have previously used the services of a sex worker. My clinical psychologist confirms that this is good for my mental, emotional and physical wellbeing. My mood is less dull. The therapy releases tension and anxiety and improves my outlook on life.
  • Given the above, it is reasonable to expect the community to provide the support of a sex worker for me. The criterion for a “reasonable and necessary support” is met.
  • The criteria for evaluating supports are not merely minimal requirements. If the criteria are met, then the NDIS must fund the support. It does not have the discretion to refuse.
  • In any event, if the NDIA funds a sex worker under my plan, it will not lead to the financial instability of the NDIS. The services only cost $10,800 per year. My circumstances are unusual, so granting funding to me is hardly going to open the floodgates to a large number of such requests.
  • The court should uphold the Tribunal’s decision and require the NDIA to approve my request for funding of a sex worker.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a40%
b60%

Expert commentary on the court's decision

Anneka FrayneDirector
Kelly BrownLawyer
“One of the stated objects of the Act is to ‘…give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities’. This Convention was the first comprehensive human rights treaty of the 21st century.

W’s case was decided on the specific facts and statutory interpretation of the Act by the court. However, some readers might ponder whether the right to pursue a pleasurable sex life is a human right. According to the court, the Tribunal consciously steered away from adopting any human-rights-based analysis.”
Federal Court finds in favour of W

In National Disability Insurance Agency v WRMF [2020] FCAFC 79 , the Federal Court ruled in favour of W.

The court upheld the Tribunal’s order to set aside the NDIA’s decision and remit the matter for reconsideration, with the direction that the support claimed, at the level claimed, is a reasonable and necessary support.

“Reasonable and necessary supports” not defined in NDIS Act

The phrase “reasonable and necessary supports” is not defined under the Act. However, in referring to the decision National Disability Insurance Agency v McGarrigle [2017] FCAFC 132, the court noted:

Ultimately… the statutory task of determining the contents of a participant’s plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised.

Criteria must be satisfied before support can be funded as “reasonable and necessary”

Section 34(1) of the Act sets out seven criteria which the NDIA must consider in determining the reasonable and necessary supports that it will fund under a participant’s plan.

According to the court, the decision maker must be positively satisfied about each of these matters. If the decision maker is not satisfied, then the claim must be rejected.

Tribunal finds that sex worker to assist W is reasonable and necessary support

It was on the basis of its assertion that one of these criteria was not met, that the NDIA denied W’s request for funding.

However, on review the Tribunal concluded that the support claimed by W for a sex worker was a reasonable and necessary support and that the criteria under section 34(1) had been met.

Court agrees that participation in sexual activity can be funded as support under the NDIS

On appeal, the court took issue with the NDIA’s policy that it does not fund participation in sexual activity. In the court’s view, the NDIA could only have taken that stance if activities involving sexual intimacy are excluded from the scheme under the Act.

The court pointed out that the Act does not expressly exclude such activities from being funded supports.

Similarly, although the Act specifies that the scheme rules may make provision about the reasonable and necessary supports that will not be funded, no rule had been made regarding the funding of participation in sexual activities. (Please see National Disability Insurance Scheme (Supports for Participants) Rules 2013.)

Nor is there an implied exclusion of such activities.

Rather, in the court’s view, the intention must be to include such activities, since excluding them would be inconsistent with the Act’s stated purpose, objectives and guiding principles.

For example, the Act emphasises disabled persons’ autonomy, choice, dignity, independence and potential for physical, social and emotional development. The court notes that it would be strange to prioritise these, except at the “point of physical intimacy with another human being”.

NDIA argues unsuccessfully for narrow construction of term “sex worker"

In her documentation, W had requested the support of a “sex worker”.

On appeal, the NDIA argued that the Tribunal had wrongly and without notice recharacterised W’s request for a sex worker as one for the services of a specially trained sex therapist. The Tribunal then wrongly determined the case on that basis.

According to the NDIA, the Tribunal should have made it aware of this re-characterisation, so that it could address the relevant issues before the Tribunal.

By failing to do this and by answering the wrong question, the Tribunal had failed to accord the NDIA procedural fairness and to perform its statutory task.

The court rejected this argument, noting that the evidence showed that W’s request for the support of a sex worker was clearly a request for a trained specialist, not a prostitute. This had been fairly disclosed to the NDIA and the NDIA had been given the opportunity to address the relevant matters.

This argument was an example of what the court described as the NDIA’s tendency to construe the Tribunal’s reasons in a pedantic manner.

Court says whether a support is reasonable and necessary is a question of fact

The court also emphasised that whether a specifically requested support, in this case a sex worker for W, rises to the level of a “reasonable and necessary support”, is a question of fact on the evidence before the decision maker.

Here that was the Tribunal.

Court defers question of whether NDIA has discretion not to fund

The NDIA asserted on appeal that it had discretion not to fund a reasonable and necessary support. However, it had not raised this issue at the Tribunal and the court saw no reason to permit such an argument on appeal.

The court noted that while this may be a significant question for statutory construction, consideration of the question would have to await a case where it has been properly raised before the Tribunal.

In any event, although the financial sustainability of the scheme must be ensured, the court said that the NDIA’s floodgates argument, that large numbers of people with similar disabilities would suddenly seek funding for sex workers, was not one of the questions the Tribunal needed to decide.

Right to pursue a pleasurable sex life as a human right

One of the stated objects of the Act is to “…give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities”. This Convention was the first comprehensive human rights treaty of the 21st century.

W’s case was decided on the specific facts and statutory interpretation of the Act by the court.

However, some readers might ponder whether the right to pursue a pleasurable sex life is a human right. According to the court, the Tribunal consciously steered away from adopting any human-rights-based analysis.

The Tribunal noted that the Convention has come under attack for downgrading the sexual rights of people with disabilities by discussing them only in the context of family life.

The Tribunal also recognised that there is much written about the case of people with a disability who do not have a partner, who still have sexual desires, but who may be disadvantaged in their pursuit of such desires due to their disability.

However, the Tribunal went on to say that “from a legal point of view references to human rights should be confined to those identified in treaties or local legislation, and I would understand the Convention on the Rights of Persons with Disabilities in its reference to human rights as not referring to sexual rights”.

The curious reader need only do a quick Google search to find a variety of information on global advocacy for sexual rights as human rights and on the relevance of existing human rights conventions to sexual rights.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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