NDIS Funding for Sex Therapy - WRMF and NDIA [2019] AATA 1771

Key points

• In WRMF and NDIA [opens in new window] the Tribunal has decided that a person with multiple sclerosis was entitled to receive NDIS funding for the services of a sex therapist to enable her to achieve sexual release. The person's condition means that she is unable to find a sexual partner and unable to otherwise achieve sexual release.
•  The Tribunal expressly avoided deciding the issue of whether it was reasonable and appropriate for the NDIS to fund the services of a sex worker (as distinct from a sex therapist) for a person with disability. 
• The person's particular circumstances were discussed in a confidential annexure to the judgment which is not available to the public. The Tribunal's public judgment also stressed that her circumstances were unique and unusual. These factors mean that this decision has little value as a precedent, but it still raises interesting issues that the NDIA will likely have to confront in the future.

Facts

The applicant is a lady in her 40s who has multiple sclerosis (MS). She is single, and ceased seeking a partner at the time of her diagnosis with MS some years ago. Because of her MS, she is unable to achieve sexual release by herself, or with a person other than a trained sexual therapist. She sought funding from the NDIS for fortnightly sessions with a sex therapist. The NDIA refused to provide this funding because it considered it was not a reasonable or necessary support.

The applicant's particular circumstances, including the discussion of the specific effect of her disability and the services provided by the therapist, are set out in a confidential annexure that is not publicly available. The Tribunal chose to do this out of respect for her privacy.

Decision

The Tribunal emphasised that this decision does not consider the issue of whether the services of a sex worker should be funded for persons with disability if their needs required it. The Tribunal also noted that the decision concerns the particular circumstances of the applicant, which are very unusual. However, the Tribunal's decision does provide useful guidance about sexual services and the NDIS. 

First, at [16]-[20] the Tribunal considered the applicant's argument that 'sexual rights' should be equated with 'human rights' under the Convention on the Rights of Persons with Disabilities. (The NDIS Act gives effect to Australia's obligations under the Convention - see s 3 of the Act [opens in new window].) The Tribunal rejected this proposition. It decided not to address the question of whether the right to sexual release could be considered a fundamental freedom under the Convention.

At the same time, the Tribunal noted that s 4(1) of the Act [opens in new window] makes it a general principle guiding actions under the Act that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. At [23] the Tribunal stated that "This principle seems to be aimed at bringing about, to the extent practicable, equality between people with a disability and others in the society, in a matter going to physical, social, emotional or intellectual development."

The Tribunal accepted the applicant's evidence that sexual release via a specialised sex therapist was good for her mental, emotional and physical wellbeing, and that it meant that her mood is less dull, it released tension and anxiety, and it improved her outlook on life. Therefore, funding for a specialised sex therapist fell within s 14(a) of the Act [opens in new window]. 

The Tribunal then considered whether the support was reasonable and necessary pursuant to s 34 of the Act [opens in new window]. Among other things, the Tribunal found that sex therapy would help to facilitate the applicant's social and economic participation and s 34(1)(b) was satisfied. Importantly, the Tribunal reaffirmed that s 34(1)(b) does not require a person to be gainfully employed (the applicant in this case does not work). As the Tribunal stated at [43], "If one has a brighter mood, and a sense of wellbeing, then one is more ready to face the world." Sex therapy facilitates the applicant's participation in society.

In relation to s 34(1)(d) - whether the support would be effective and beneficial for the applicant - the NDIA argued that rule 3.1(b) of the NDIS Participant Rules [opens in new window] required the Tribunal to be satisfied that the sex therapy would be of long-term benefit to the applicant. The Tribunal noted that the applicant's NDIS plan duration was only 12 months, and the support could be reviewed if her circumstances changed. 

Finally, in relation to s 34(1)(f) - whether the support is most appropriately funded by the NDIS - the Tribunal rejected the NDIA's argument that the support should be funded from the applicant's disability support pension. The Tribunal observed that if it accepted the NDIA's argument, then any person who received a disability support pension could generally not obtain a finding that any support is reasonable and necessary, because they could not satisfy this criterion.

Analysis

The Minister for the NDIS, Stuart Robert, has stated that the NDIA intends to appeal [opens in new window]. That surprises me. The decision is very well-reasoned and the Tribunal was careful to avoid potentially opening the floodgates for people with disability to seek funding for e.g. visits to a sex worker. Also, the fact that the applicant's circumstances are very unique, and the Tribunal's decision to not publicly disclose the applicant's particular circumstances, means that this decision will not be too much help to a person seeking similar NDIS funding. 

The broader issue of whether the NDIS should fund sexual services raises tricky questions. Other countries provide state funding for sexual services for the disabled, and I don't agree with the Minister's statement that providing funding for sexual services from the NDIS would necessarily be inconsistent with community expectations. 

The hardest question in my view would be what message NDIS funding for sexual services would send to people with disability. The risk is that it signals to the community that people with disability are unable to find sexual partners in the community. At the same time, that is the case for some people with disability. There is also a more practical question of trying to draw a line between a person in the applicant's position who is unable to have a sexual partner because of her disability, and a person with disability who for other reasons is unable to find a partner. I would not be surprised if the Australian government eventually has to tackle these issues.

UPDATE 16 May 2020: The Full Court of the Federal Court of Australia has dismissed the NDIA's appeal from this decision. See further here [opens in new window]