When the decision of WRMF and National Disability Insurance Agency was handed down in early July 2019, disability advocates and the media erupted into immediate calls for sex workers to be funded by the NDIS. Everyone recognised that this decision, about sex therapy being a ‘reasonable and necessary support’ was not about sex workers but sought to ripen the issue of funding sex workers by talking about this case. This blog isn’t about the debate on funding sex workers, because that’s not what the case is about. Instead, the case offers some great points on recognising people with disabilities as social participants and hearing the evidence of people with disabilities over that of medical professionals.
As always, these case-theme blog posts are never:
A substitute for reading the case
NDIS Plan advice
The story behind the case
Well, this will be a short explanation because we don’t know much about the applicant or her circumstances. Rayment J has opted to provide confidential reasons which disclose the complete circumstances to the parties, but not make those available to the public. And rightly so. The whole case concerns how the applicant is able to achieve sexual release. What a personal topic! I am not sure how many non-disabled people would find themselves in the situation of having to disclose to a court (or any public forum) what they need to achieve sexual pleasure! To me this really highlights the weird and not-so-wonderful part about living with a disability in 2019 - to access everyday supports which concern really intimate parts of your life, you have to discuss them with government agencies and then in some cases, you have to air them out to fight for them in a public arena, like a Tribunal! I really like that Rayment J exercised his powers to release his decision in part, protecting the applicant's dignity in the public arena [at 2].
Suffice to say, the applicant is a female in her forties and lives with Multiple Sclerosis and other related conditions. She has had MS for sixteen or seventeen years and since that diagnosis has ceased seeking a partner. Her conditions, the Tribunal explain make the prospect of her obtaining “sexual release of any kind without the intervention of a sexual therapist unlikely” [at 10]. The applicant does not work and so receives income from the Disability Support Pension. She has no intellectual impairment.
What the Tribunal had to decide
The issue (and only issue) is whether funding a sex therapist is a reasonable and necessary support.
What the Tribunal said
People who do not diligently follow the NDIS legislative or policy space with intimate detail (c’ mon, it’s super fun!) may not be aware that ‘reasonable and necessary support’, a hallmark of the NDIS, is not a phrase defined in the NDIS Act. Without a definition to hand, Rayment J explores the interpretation of these words through this decision.
In McGarrigle v National Disability Insurance Agency (2017) FCA 308, Mortimer J looked at what reasonable and necessary supports should enable and empower a person with a disability to do alongside the purposes for which the funding is provided [at 12]. The context in which the expression ‘reasonable and necessary supports’ exists in the NDIS Act has built the foundation of Rayment J’s interpretation of that phrase in this case [at 13].
Section 3 of the NDIS Act sets out the Objects of the Act. For this decision, the following were identified as assisting the interpretation of ‘reasonable and necessary supports’:
Give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (s 3(1)(a))
Support the independence and social and economic participation of people with disability (s 3(1)(c))
Enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (s 3(1)(e))
Promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (s 3(1)(g))
Give effect to Australia’s obligations under the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Elimination of All Forms of Racial Discrimination (s 3(1)(i)
The need to ensure the financial sustainability of the NDIS (s 3(3)(b)).
Importantly, it was found that ‘sexual rights’ were not human rights [at 20] and whether the need for sexual release was a fundamental freedom went unanswered [at 21].
Section 4 of the NDIS Act provides the general principles guiding actions under the Act and the following were interwoven into their like counterparts in section 3 by Rayment J:
People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (s 4(1))
People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability. (s 4(2))
People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
Reasonable and necessary supports for people with disability should support people with disability to pursue their goals and maximise their independence; and support people with disability to live independently and to be included in the community as fully participating citizens; (s 4(11)(a) and (b)).
So now you are getting a good flavour of what the NDIS Act is all about which informs how the sections that follow work.
When the NDIA considers reasons for which it may provide assistance in the form of funding, they consider the reason for the person participating in social and economic life (s 14). The applicant had given evidence on her achievement of sexual release as a result of the services of a specialised sex therapist and that it was good for her mental wellbeing, her emotional wellbeing and her physical wellbeing [at 34]. Impressively, Rayment J relied on the applicant's evidence to be satisfied that this reason was present in this case.
In the search for “what is a reasonable and necessary support”, Rayment J diligently went through the subsections of section 34 of the NDIS Act, which I won’t repeat in full but there are some salient points worth noting.
On the question of “will the support assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations?” (s 34(1)(a)) the applicant’s evidence that the achievement of sexual release was good for her mental wellbeing, emotional wellbeing and physical wellbeing align with her goal to “maintain my health and wellbeing” was accepted by the court [at 42]. The applicant’s counsellor also gave evidence which was not relied upon by the Tribunal because “She [the applicant] is best placed to know the effects upon her of the sexual therapy she has received…” [at 42]. In my view, this is a fantastic recognition of the voice of people with disability in NDIS cases. Moving away from a medical model and toward listening to people’s experience and how they need supports to be active social and economic participants is incredibly important. More of this, please!
The requirement for “support to assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation” (s 34(1)(b)) was clarified by Rayment J to be that “[e]conomic participation should be understood as economic participation if that is possible” [at 43]. In making this point, Rayment J said, “many people who are participants do not work and never will work, because of their disabilities and what it means for them” [at 43]. I think some caution is needed here - this should not reinforce low expectations of people with disabilities. I hope readers view that statement as “people with disability are often not given equal opportunity to work. They can work, but they aren’t given a fair go. But we also recognise that some people will have complex disabilities which mean they won’t be able to work and those people continue to deserve support”. But economic participation aside, Rayment J found in favour of the applicant’s supports on the basis of her social participation where her mood is brighter, and she has a sense of wellbeing.
The NDIA argued that rule 3.1(b), which refers to a substantial improvement of the life stage outcomes of the participant was not satisfied by this case. However, Rayment J helpfully pointed out that periodic reviews will pick up any possible changes in the circumstances of the applicant which are interpreted to be at the heart of rule 3.1(b) [at 47]. You may be starting to worry that the NDIA could just review the Plan which includes the sex therapy in a periodic review and determine it is not required, again starting the very debate before the Tribunal. But Rayment J is clear “[s]o far as can be seen from the evidence before the Tribunal, the benefits that she will derive from the support will continue for the duration of this plan, and, unless some of the circumstances of the applicant change, thereafter for an open-ended period.” [at 47]. This is a great point for future cases where the substantial improvement to life stage outcome seems ambiguous.
Section 34(1)(e) turns the Tribunal to whether the support takes into account what is reasonable to expect families, carers, informal networks and the community to provide. The NDIA argued it was for the community to provide the source of a sexual partner, rather than a specially trained sex therapist. Rayment J refused this, relying again on the applicant’s evidence that finding a partner was not possible or appropriate in the circumstances for the applicant to be able to achieve sexual release [at 48]. Again, the voice of the person with a disability comes through loud and clear here which is so welcome.
The last argument from the NDIA that the support shouldn’t be funded was on the basis that it should be funded with the applicant's disability support pension. Rayment J cautioned that if the NDIA was to argue that it doesn’t matter whether the pension is enough to cover the cost, because section 34(1)(f) operates regardless of whether another provider does pay the amount in question, that would be offensive to his recent decision in Burchell (see my previous blog post on that decision). The argument that the disability support pension should be used to fund this support was rejected [at 52].
What does it mean
This case got a lot of attention because it was seen to open up the debate on sex workers. I disagree, completely. Rayment J is unequivocal that this has nothing to do with sex workers, and sex therapy is a different concept for the purposes of this case. In fact, it’s perhaps a bad case for the ‘sex worker issue’ because it expressly says that ‘sexual rights’ are not human rights which will be a wound, a case concerning funding for a sex worker may need to heal.
This case helps to refine how ‘reasonable and necessary supports’ are to be interpreted and also stands up for the voice of people with disability in saying what support they need, to achieve their goals. In some ways, this case is a quiet achiever for that issue. It tells us that the Tribunal is listening to people with disabilities, and are looking to move away from a medicalised model where reliance is always given to the evidence of medical and allied health professionals when determining the needs of people with disabilities.
The close attention to each subsection of section 34 provides important guidance on this provision when determining reasonable and necessary supports. As always, what is reasonable and necessary support for one person will not necessarily be so for another. But this case gives a greater understanding of what we should be on the lookout for when supports are subject to section 34.