The Facts

Woman becomes eligible to participate in National Disability Insurance Scheme

Seventeen years ago, a woman referred to as "W", who is now in her forties, was diagnosed with multiple sclerosis (MS).

In 2016, she applied to participate in the National Disability Insurance Scheme (NDIS) and was accepted as an eligible person.

The NDIS is a statutory scheme set up under the Commonwealth National Disability Insurance Scheme Act 2013 ("the Act") to provide funding for support and services directly to eligible persons with disabilities.

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 necessary supports".

The plan must be approved by the National Disability Insurance Agency (NDIA).

Woman's request for funding for cost of sex worker denied by NDIA

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 worker.

The NDIA denied the request.

Woman challenges NDIA decision

W sought an internal NDIA review of its decision to decline her request.

The internal review upheld the NDIA's decision, saying that the requested funding did not meet the funding criteria under the Act.

W appealed the decision to the Administrative Appeals Tribunal.

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 Court.

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 purpose.
  • 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 occupational therapist.
  • 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 viability.
  • 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 anyway.
  • 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 here.
  • 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.

So, which case won?

Cast your judgment below to find out

Anneka Frayne
Kelly Brown
Insurance claims
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.