Once a person becomes eligible, a plan is created outlining
their goals, the support needed to help achieve those goals, and
the funding to be made available to them for "reasonable and
The plan must be approved by the National Disability Insurance
Woman's request for funding for cost of sex worker denied
Due to her MS, W walks with difficulty and with the assistance
of strong MS drugs.
She does not work and her main source of income is the
disability support pension.
The NDIA provides her with the services of a carer to attend to
her physical needs.
Prior to being diagnosed with MS, W had an active sex life.
However, due to her MS, sexual release of any kind is now highly
unlikely without specialised assistance.
In her NDIS plan, W requested funding for the services of a sex
The NDIA denied the request.
Woman challenges NDIA decision
W sought an internal NDIA review of its decision to decline her
The internal review upheld the NDIA's decision, saying that
the requested funding did not meet the funding criteria under the
W appealed the decision to the Administrative Appeals
The Tribunal ruled in her favour, concluding that the NDIA was
required to fund her request for the support of a sex worker.
The NDIA appealed the Tribunal's decision to the Federal
case a - The case for the NDIA
case b - The case for W
The use of a sex worker does not meet the criteria for a
"reasonable and necessary support" under the Act.
Therefore, we are not authorised to provide funding to W for this
As we told W in our letter to her, the requested support does
not meet the criterion of reflecting what is reasonable to expect
the community to provide. Sexual activities are activities all
Australians decide on whether they would like to pursue or
purchase. It is not a disability-specific need. It is not the role
of our agency to provide W with a replacement sexual partner.
If W needs assistance achieving sexual release, she is able to
use sex toys, perhaps with instructional assistance from an
If instead W chooses to use a sex worker, she is able to pay
for those services using her disability support pension. Her NDIS
funding can still be used to pay for a support worker to assist her
to travel there and back.
Even if the court finds that W's request for a sex worker
meets the criteria in the Act, those criteria are merely a set of
minimal requirements to consider before potentially providing
funding. We are not required by the Act to fund supports simply
because the criteria have been met.
Equally important is the financial sustainability of the NDIS.
The provision of sex workers is not a cost we have previously
factored in or budgeted for under the scheme. In the event that
there is a significant uptake of this suggested support, the
financial burden on the NDIS could affect the scheme's
The court should uphold our original decision to deny funding
to W for a sex worker.
The NDIA seems to think that I've requested funding for a
prostitute. I have not, and such services would be of no use to me
I have requested funding for a skilled sex therapist, trained
in providing sexual services to clients with disabilities.
I am unable to "pursue" a normal sex life like other
Australians, as the NDIA suggests that I should. My disability
makes it impossible to find a partner in the community.
Even if I could find a partner, it's unlikely that she
would be willing or able to provide the kind of services that I
require in order to climax. Nor would I be able to sexually
stimulate her. I have shared the reasons for this in my
confidential evidence to the court and do not propose to elaborate
The Act enumerates principles for guiding the NDIA's
actions and decision making. One of these principles is that people
with disabilities have the same rights as other members of
Australian society to realise their potential for physical, social,
emotional, and intellectual development. The support of a sex
worker helps me to realise these rights.
I have previously used the services of a sex worker. My
clinical psychologist confirms that this is good for my mental,
emotional and physical wellbeing. My mood is less dull. The therapy
releases tension and anxiety and improves my outlook on life.
Given the above, it is reasonable to expect the community to
provide the support of a sex worker for me. The criterion for a
"reasonable and necessary support" is met.
The criteria for evaluating supports are not merely minimal
requirements. If the criteria are met, then the NDIS must fund the
support. It does not have the discretion to refuse.
In any event, if the NDIA funds a sex worker under my plan, it
will not lead to the financial instability of the NDIS. The
services only cost $10,800 per year. My circumstances are unusual,
so granting funding to me is hardly going to open the floodgates to
a large number of such requests.
The court should uphold the Tribunal's decision and require
the NDIA to approve my request for funding of a sex worker.
On 12 March 2010 in S v South Eastern Sydney & Illawarra Area Health Service  NSWSC 178, the NSW Supreme Court considered the requirements for making a community treatment order (CTO) under Part 3 of the Mental Health Act 2007 (NSW) (the Act).