Social and economic participation in heels - Pavilupillai v NDIA

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Key points

  • The Convention on the Rights of Persons with Disabilities (CRPD) [opens in new window] sets out a number of broad rights and principles that countries (including Australia) have agreed to promote, protect and ensure the enjoyment of by people with disability. One of the objects in s 3 of the NDIS Act [opens in new window] is to give effect to Australia's obligations under the CRPD.
  • However, the CRPD is not an independent source of rights for Australians. What matters is the terms of Australia's laws, including the NDIS Act. A person's rights in relation to the NDIS are determined by reference to the NDIS Act, not the CRPD. 
  • 'Social and economic participation' is about pursuing goals and maximising independence and community participation. It is not directly about a person's wishes and desire to enjoy a particular lifestyle.

Facts

Ms Pavilupillai contracted polio as an infant and as a result suffers from very severe muscle weakness in her legs, arms, trunk and pelvis. Ms Pavilupillai wears knee and foot orthotics (KAFOs) on both legs. Until recently, KAFOs were designed to only be worn with a flat shoe with a heel of less than 12 mm. Now, a new type of attachment for KAFOs called a Posterior Dynamic Element (PDE) allows the wearer to change the foot and tibial attachment of the KAFO and essentially choose whether to wear flat shoes or heels. The cost is about $3,800. Ms Pavilupillai sought review of the NDIA's decision to refuse to include the cost of PDEs in her support package. The Tribunal's decision is found at [2018] AATA 4641 [opens in new window].

In order for a support to be reasonable and necessary the CEO of the NDIA must be satisfied of a number of things set out in s 34 of the NDIS Act [opens in new window], including that the support will assist the participant to undertake activities so as to facilitate the participant's social and economic participation. Ms Pavilupillai argued that the NDIA's interpretation of 'social and economic participation' was too narrow and that the NDIA had to take into account principles from Art 3 of the CRPD, including: 
  • Respect for inherent dignity and individual autonomy including the freedom to make one's own choices and independence of persons
  • Non-discrimination
  • Full and effective participation and inclusion in society
  • Equality of opportunity
  • Accessibility
The Tribunal referred to a decision of the High Court called Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 [opens in new window]. In that case the High Court pointed out at [25] that provisions of an international treaty to which Australia is a party do not form part of Australian law unless they have been incorporated into domestic law by statute (i.e. Parliament passing a law). A treaty that has not been incorporated into domestic law cannot operate as a source of individual rights and obligations. Even so, international treaties remain relevant, because the High Court stated at [27] that an Australian statute should be "interpreted and applied... so that it is in conformity and not in conflict with the established rule of international law". 

The Tribunal disagreed with Ms Pavilupillai and decided at [70] that 'social and economic participation' should not necessarily be read as taking into account the wishes of the individual, their enjoyment of lifestyle, and the freedom to make choices for themselves. 'Social and economic participation' should be interpreted by reference to s 4(11) of the NDIS Act [opens in new window] which sets out what reasonable and necessary supports should do. At [71] the Tribunal decided that 'social and economic participation' means activities that bring a person together with others in the community and as part of the community. 'Economic' means activities that facilitate a person’s employment or other income-generating activity.

The Tribunal observed at [72] that there were no activities that Ms Pavilupillai could not do in flat shoes. She did not work in a job that required her to wear heels. Although she believed that she would be more attractive and would have better self-esteem if she wore heels, and she would have a greater choice of things to wear, this would not alter her social participation. Therefore, the PDEs would not assist her to undertake activities to facilitate her social and economic participation, and they did not satisfy s 34(1)(b) of the NDIS Act [opens in new window]. 

The Tribunal also decided at [84] that having regard to their cost and the uncertain benefits of wearing heels, PDEs did not represent value for money and thus did not satisfy s 34(1)(c) of the NDIS Act [opens in new window]. Also, given the risk of injury and a long recovery time if Ms Pavilupillai were to fall, the Tribunal found that best practice would be for her to wear flat shoes and therefore PDEs were not likely to be effective and beneficial for the participant, having regard to current good practice and therefore s 34(1)(d) of the NDIS Act [opens in new window] was not met. The Tribunal upheld the NDIA's decision.

Analysis

This case is a useful reminder that although the broad statements in the CRPD would seem to support many more entitlements than what are offered under the NDIS Act, what really matters is the NDIS Act, not the CRPD. The CRPD may be useful as a guide to interpreting the NDIS Act, but it is not a separate source of rights for people with disability in Australia. Applicants before the Tribunal should consider the terms of the CRPD, but they should bear in mind that the focus always has to be on the NDIS Act and the Rules.

I sympathise with Ms Pavilupillai and I do think that the idea of 'social and economic participation' requires a broad interpretation. I think that the Tribunal could have given more consideration to the ability of Ms Pavilupillai to wear whatever she wants as a form of social participation. Shopping and the ability to try on clothes (for some people at least) is a social activity. By not being able to wear heels Ms Pavilupillai is effectively cut off from being able to shop for and wear a significant range of shoes and at least some dresses. Although there aren't any activities in a broad sense that she does that specifically require heels, from my own observation there would be some events e.g. formal dinners, gala events or balls, where a woman who was not in heels would be part of a conspicuous minority. (As an aside, the Tribunal member who decided this case, Deputy President Forgie, is female.) This is another example of the difficulty in trying to maximise the ability of people with disability to self-actualise and choose, against ensuring that the NDIS only provides funding for reasonable and necessary support. 

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