NDIS Particpant Wins Appeal for Sex Therapy – How this AAT Case Helps Participants with SDA Funding – Guest Post by Certus Legal – NDIS & SDA Lawyers
“Participant wins appeal for Sex Therapist funding under the NDIS”
Whilst this decision includes a topic that is getting headlines (e.g. Sex Therapy), the core principles for decision-making set out by the AAT are useful in any claim for supports under the NDIS.
If a claim for funding for a support this controversial in nature can be approved, we anticipate that this decision will offer some peace of mind for Participants when applying for supports as crucial as Specialist Disability Accommodation.
The Applicant was successful here because her plan addresses, and the support meets, each legislative criterion set out in the Act that the NDIA is required to consider when determining whether a support is reasonable and necessary.
In these early stages of the NDIA, it is clear that many decision-makers within the NDIA appear to be relying on discretion when it comes to approving plans, as opposed to referring to the criteria laid out in the Act. A carefully drawn plan is essential for Participants when submitting applications for funding approval to the NDIA. The risk that plans will be rejected without proper grounds will be substantially reduced where:
- each of the criteria set out in the Act are addressed to some extent;
- the supports clearly fit within the principles of the Act;
- the plan adopts appropriate language making it clear that the claimed supports comply with the Act, Rules, and relevant NDIS materials; and
- the claim for the support, and benefits likely to be received from its provision, are clearly set out and substantiated.
This is a guest post from our lawyers at Certus Legal on a case that, regardless of the support being requested, has wide implications for participants in exploring what supports the NDIA must deem reasonable and necessary.
Short Form Case Review: WRMF and National Disability Insurance Agency  AATA 1771 (8 July 2019)
It may sound like a catchy title and it may seem out of the ordinary to many people (certainly those decision-makers in the National Disability Insurance Agency (the “NDIA”)), but this Administrative Appeals Tribunal (“AAT”) decision represents a keystone and sorely needed authority on the decision-making process utilised by the NDIA when it comes to funding for supports within Participants’ plans.
The Decision in (about) two hundred words or less:
- The Applicant suffers from cerebral palsy and multiple sclerosis. As a result of her disability, she does not have or expect ever to have a sexual partner;
- The Applicant applied, within her NDIS plan, for a support in the form of a Sex Therapist at a cost of $10,800 per year;
- The NDIA rejected her application on the basis that it did not satisfy the criteria of the National Disability Insurance Scheme Act 2013 (the “Act”) and was not a reasonable and necessary support;
- The Applicant exercised her rights of appeal, and made an application to the AAT;
- The AAT found:
- if a certain support is specifically excluded from NDIS funding, that exclusion of support must be unanimously be agreed upon by all States and the federal government (i.e. it is not up to the NDIA to make a policy decision as to universally excluded supports);
- the support satisfied the criteria set out in section 34; and
- as the support satisfied the criteria set out in section 34, it was deemed reasonable and necessary; and
- The AAT has referred the Applicant’s plan back to the NDIA for reconsideration with a direction to the NDIA that the support from a Sex Therapist is, in this case, a reasonable and necessary support.
The Applicant’s Circumstances
The Applicant’s disability prevents her from finding a sexual partner within the wider community and, were she to find a partner, it is highly unlikely that any partner within the community would be able to bring her to sexual release due to her disability. She has only been able to achieve sexual release with the assistance of a qualified Sex Therapist.
Beyond the Applicant’s physical disabilities, she is in all other respects an intellectually cognisant woman in her forties looking to lead a normal life. The Applicant continues to experience normal sexual desires.
The AAT accepted verbal evidence from the Applicant that the services of a qualified Sex Therapist are:
“[…] good for her mental wellbeing, her emotional wellbeing and her physical wellbeing […], she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.”
Effectively the AAT ruled that the NDIA cannot take into account factors unless they are provided for in the Act. A strict interpretation of the Act means that a reasonable and necessary can only be defined with reference to the principles of the Act.
The support in this case provided the Applicant with benefits that assisted her in participating in social life. The NDIA was held to be empowered to fund this support under the Act, where the required purpose of the funding (participating in social life) was read in context with the guiding principles of the Act.
As the NDIA was empowered to fund this support, the question then turned to whether the NDIA should fund this support (i.e. was it a reasonable and necessary support) as part of the Participant’s plan. The NDIA therefore was required to consider the following questions:
- Would the support assist the participant to pursue the goals, objectives and aspirations included in the Participant’s statement of goals and aspirations?
In determining whether it was a reasonable and necessary support, the services of a Sex Therapist supported the Applicants statement of goals and aspirations within her plan, specifically the following goal:
“I want to maintain my health and wellbeing.”
The services of the Sex Therapist (for the health and wellbeing benefits set out in Applicant’s verbal evidence, referred to above) assisted the Applicant in pursuing her longer term goals.
- Will the support assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation?
For the health and wellbeing benefits set out above, the support of a Sex Therapist assisted the Applicant undertake social activities. In the words of the AAT:
“If one has a brighter mood, and a sense of wellbeing, then one is more ready to face the world. As I remarked above, the applicant has no loss of intellectual capacity and she desires to socialise as others do.”
- Does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
The cost of the support claimed, at $10,800 per annum, was reasonable relative to market rates for qualified sexual therapy services. The numerous health and wellbeing benefits that the Applicant experienced as a result of these services validated this cost (and there were no other alternative supports available).
- Is the support, or is the support likely to be, effective and beneficial for the participant, having regard to current good practice?
The evidence provided by the Applicant substantiated the finding that the support has previously been effective and beneficial. The support was, and will be, provided by a qualified professional, thus it is consistent with good practice.
I note that the NDIA made submissions as to the potential for an alternative support being provided by either specific equipment or an occupational therapist. Based on confidential reasons (which one can assume was related to the Applicant’s disability), the submission that specific equipment could serve as an alternative was rejected. Based on the common sense of the AAT decision-maker, the submission related to an occupational therapist providing similar alternative services was also rejected.
- Does the funding or provision of the support take into account what is reasonable to expect families, carers, informal networks and the community to provide?
The claimed support was incapable of being provided by any other professional than a qualified Sex Therapist, it was agreed by the parties that these services could only be reasonably provided by this type of specialist.
Some submissions were made by the NDIA that the opportunity for sexual release was already available to the Applicant, by way of her opportunity to find a partner in the wider community. This submission was rejected by the AAT based on the fact that the Applicant’s disability effectively made it impossible for her to find a sexual partner that could provide the same benefits she receives from a qualified Sex Therapist.
- Is the Support most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through another general system of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
- As part of a universal service obligation; or
- In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability?
This question relates to whether the Applicant had a right under some other legislation to the support. For example, a claim that the NDIA should provide support in a Participant’s workplace to make it accessible to disabled persons would be rejected, as the workplace would be required to fund and make reasonable adjustments under the Disability Discrimination Act 1992.
The NDIA made submissions to this point that the support should be rejected as it should be funded out of her disability support pension. In response to this submission, the AAT decision-maker stated:
“The disability support pension is not paid in order to provide funding for the purposes for which the NDIS was established.”
Essentially, and flatly put; a Participant is not barred from claiming a support under the NDIS by the mere fact that they receive the disability support pension. This is a false notion often encountered by our firm. The disability support pension exists to supplement income, not to fund supports.
If the NDIA’s submission were correct, Participants would be unable to claim supports wherever they have received the disability pension. If this were the case, essentially the two schemes would become mutually exclusive, and I believe the AAT’s decision-maker puts this most succinctly:
“Arguments about whether the support is more appropriately funded by a pension seem to require an infinite regress of reasoning.”
If you encounter anyone who believes they are barred from claiming supports simply due to receiving the disability support pension, please immediately refer them to our firm as this is simply not the case.
- Is the support prescribed by the Rules as a support that will not be funded or provided under the National Disability Insurance Scheme?
The NDIA made submissions that the support should be excluded as it does not relate to the Applicant’s disability, as prescribed under rule 5.1(b) of the Rules. As the entire reason the Applicant is seeking the services of a Sex Therapist is due to her disability, the NDIA’s submission on this point was dismissed out of hand.
Further, the NDIA claimed that the support should be excluded as it related to income replacement (which is instead provided for the under the disability support pension), as prescribed under rule 5.3(b) of the Rules. Again, this submission was dismissed out of hand, as would it be accepted there would be grounds to deny every claim for (otherwise) reasonable and necessary supports.
- Does funding the support comply with any methods or criteria prescribed in the Rules for deciding a reasonable and necessary support to be funded under the NDIS?
I include this question for the sake of completeness, as it is the final hurdle to jump through when having a support approved by the NDIA. Submissions on this point overlap with those set out in the above Question 7.
As the NDIS has progressed, it is clear there is a space in this area for legal professionals to offer their services, specifically when it comes to drafting participants’ plans so that they comply with legislation, and appealing any erroneous decisions made by the NDIA.
Should you, or anyone you know, require assistance in drafting a plan for submission to the NDIA, we welcome you to contact our firm for further information on what services we can provide.
A long-form version of this article outlining the full legal process that the AAT decision-maker used to reach its conclusion will be posted on our firm’s website in the coming days: https://www.certuslegal.com.au/personal/ndislawyers/
- The NDIA has an opportunity to appeal the AAT’s decision, although the grounds of this appeal are unclear to the author. The Act makes clear, as stated in the AAT decision, that it is not within the scope of the NDIA to determine the types of supports that should be blanket banned. The NDIS minister, Stuart Robert, has stated that the services of a Sex Therapist “are not in line with community expectations of what are reasonable and necessary supports.”