Federal Court confirms sex therapy may be funded under the NDIS - NDIA v WRMF [2020] FCAFC 79

Key points

1. In NDIA v WRMF [2020] FCAFC 79 [opens in new window] the Full Court of the Federal Court of Australia has rejected the NDIA's blanket position that sexual services cannot be funded under the NDIS. This allows individuals who because of their disability are unable to achieve sexual release to seek funding for sexual services through the NDIS. 
2. Those sexual services could be provided by a person described as a sex therapist or a sex worker. However, it is more likely that funding for those supports will be approved by the NDIS or Tribunal if they are provided by a person that has experience or formal or informal training in providing sexual services to people with disability.
3. It is important to remember that each case turns on its facts, and the facts of this case are particularly unusual.

Facts

The facts, as well as a description of the proceedings before the Tribunal, can be found here [opens in new window].

Appeal

In a unanimous decision, the Full Court of the Federal Court of Australia (Flick, Mortimer and Banks-Smith JJ) dismissed the NDIA's appeal.

In its first two grounds of appeal, the NDIA argued that the Tribunal had acted unfairly towards it by deciding the case on the basis that the applicant was seeking funding for a sex therapist as distinct from a sex worker. The NDIA claimed that the Tribunal failed to determine the question of whether it was reasonable and necessary for the applicant to be given funding for a sex worker.

At [76] the Court agreed that the Tribunal did not disclose that it would use the phrase 'sex therapist' to distinguish the applicant's claim from the type of claim an able-bodied person might seek from a sex worker in a brothel, private home or elsewhere. 

However, the Court observed that it was clear from the written submissions and hearing before the Tribunal that the applicant was seeking services from a sex worker that had experience and specific training in working with people with disability. At [93] the Court stated "What the Tribunal was required to do was to consider the substance of the service for which the respondent sought funding, and we consider the Agency was on notice over the considerable period of the hearing of the application of the true nature of the claimed support."

Importantly, the Court stated at [96]: "...the respondent was not seeking services that might be sought by a non-disabled person for transactional sexual activity or release (however described). The respondent was seeking a particular kind of service from someone who is prepared to work with her knowing her complex medical conditions; prepared to work with her in circumstances that would be challenging to many people (as described by the respondent in her evidence); willing to learn to assist her having regard to her particular needs; and who has appropriate expertise (however gained) working with disabled persons. The fact that it might be provided by a person who might also be described as a sex worker is not to the point. It is the specialised service to be provided that distinguishes the nature of the respondent's claim."(emphasis added)

At [98(c)] the Court found that the Tribunal's decision did not exclude from the category of sex therapists people that also provided sex work (presumably to the wider community).

The NDIA's third ground of appeal was that the Tribunal made nine findings of fact that were unsupported by evidence and lacked any evident or intelligible justification (what legal practitioners refer to as 'unreasonableness'). It claimed that the finding that there was no evidence that the sex therapist had any specialised training. 

At [109] the Court rejected this argument. The Court found that there was no reason why the expressions 'experienced' or 'trained' should be interpreted narrowly. "Rather, such terms can properly be understood as including training such as training through workshops or training from experience over time working with disabled persons with particular needs." A sex worker could be described as experienced or trained without having had formal qualifications or completing a course.

The NDIA argued that it was "presumptuous" for the Tribunal to assume no partner would be willing to provide the sort of sexual release required by the applicant. The Court noted at [120] that there was very specific evidence about the role of the person providing sexual therapy to the applicant, and the fact that the applicant's disability prevented her from sexually stimulating a partner. Further, although there was some evidence of the applicant having used sex toys in order to obtain a release, these only gave her a limited release. The Court rejected the NDIA's argument that the Tribunal's decision was unreasonable.

The Court found at [141] that sexual activity and sexual relationships fell within s 24(1)(c) NDIS Act [opens in new window]. Sexual activity forms part of the spectrum of social interaction between individuals in a community. 

At [142], the Court stated: "The Agency's case before the Tribunal was that it 'does not fund' participation in sexual activity. That position can only have been taken, as a policy or blanket position, on the view that activities involving sexual intimacy are outside the scheme of the Act. [...] The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included. Otherwise, the values, objectives, purposes and guiding principles with which this legislative scheme is replete, where they speak of autonomy, 'best interests', 'exercising choice and control', 'participation in the community', 'full inclusion', 'potential for physical, social, emotional and intellectual development', 'respect for their worth and dignity', 'maximise their independence' and 'maximising independent lifestyles' are to be understood as not meaning what they appear to convey, and as being subject to a limit, by way of a hard and impassable line, at the point of physical intimacy with another human being."

At [157] the Court elaborated further on the NDIA's position that it did not fund participation in sexual activity: "What drove the Agency's blanket approach was never clearly revealed in its explanations to the respondent, its media release, or in its submissions to the Tribunal or to this Court. It is difficult to tell whether an accurate descriptor of the Agency's position is 'political', or 'moral' or another adjective. However, the point arising from this paragraph of the Tribunal's reasons at [3]-[8], which we respectfully consider to be correct, is that, absent an exercise of the exclusionary power under s 35 (which the Parliament has chosen to constrain in specific ways), the Tribunal was to approach the question of whether the claimed support was a 'reasonable and necessary support' by examining the 'particular circumstances of the applicant' (at [8])."

Analysis

The Court's decision clearly states that sexual services may, depending on the circumstances of the applicant, be reasonable and necessary supports and capable of being funded under the NDIS. It rejects the NDIA's blanket statement that the NDIS simply does not fund those kinds of supports. It is, once again, a judicial statement that emphasises the fact that the focus of the NDIS must be on the needs of the individual, rather than blanket policy.

At the same time, it should be remembered that each case depends on the individual circumstances of the applicant, and the Court and Tribunal in this case emphasised that the circumstances of this applicant were unusual. 

Parliament does have the ability under s 35(1)(b) of the NDIS Act [opens in new window] to make rules excluding types of supports from coverage by the NDIS. That would extend to a rule prohibiting sexual services, whether provided by a sex therapist or sex worker, from being funded by the NDIS. However, the Commonwealth and each of the States and territories would have to agree to this rule - see s 209(4) NDIS Act [opens in new window]. It remains to be seen whether there will be any agreement to such a rule. 

I think the more likely outcome is that the NDIA will recognise that the circumstances of this case are unusual, and there won't be a need for blanket legislation prohibiting these types of services from being funded. There are certainly people with disability in the community who require the services of a sex worker to achieve sexual release, and they will presumably be pleased with this decision. However, I don't think this decision will lead to a flood of applications for NDIS-funded sexual services.