Guy and National Disability Insurance Agency

[2024] AATA 3029

Guy and National Disability Insurance Agency [2024] AATA 3029 (28 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2023/1649          

Re:Shaun Guy  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member S Smith

Date:28 August 2024

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

.............................[SGD]...............................

Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – value for money - request for regular access to a sex worker – sex therapy - autism spectrum disorder - social and communication deficits – long-term effects of a sex worker on functional capacity - distinction between sex worker and sex therapist – where allied health therapies represent value for money – purpose of the scheme - disability needs of the applicant – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

G v Minister for Immigration and Border Protection [2018] FCA 1229
HTDD and National Disability Insurance Agency [2024] AATA 725 
McGarrigle v National Disability Insurance Agency [2017] FCA 308
MDCT and National Disability Insurance Agency [2022] AATA 697
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA
National Disability Insurance Agency v KKTB [2022] FCAFC 181
National Disability Insurance Agency v WRMF [2020] FCAFC 79
NJSC and National Disability Insurance Agency [2022] AATA 4449
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Spires and National Disability Insurance Agency [2023] AATA 1230
WRMF and National Disability Insurance Agency [2019] AATA 1771

Secondary Materials

Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023

REASONS FOR DECISION

Member S Smith

28 August 2024

INTRODUCTION

1. Ms Shaun Guy is a 31-year-old Indigenous Australian who identifies as transgender and uses she/her pronouns. Ms Guy lives with her two dogs, three pet snakes, bird and two lizards in public housing accommodation in a coastal area of Queensland. Ms Guy prefers to be called Shaunee.

2. Ms Guy became a participant in the National Disability Insurance Scheme (the scheme) on 18 December 2018 on the basis of impairments resulting from a diagnosis of autism spectrum disorder (ASD) and an unspecified intellectual disability.

3. Ms Guy enjoys woodwork and also runs a business catching wild snakes in her local community.[1] Ms Guy relies on her support workers to transport her to snake ‘callout’ jobs, and if they are unavailable she asks clients to transport her to ‘catch and relocate’ the snake.[2] Ms Guy reported ten callouts since January 2024[3] for which she charges a callout fee however her main source of income is the disability support pension.[4]

   [1] Transcript of proceedings, page 39 line 20-22; EB1, T Documents, T1A: Initial Assessment Report of Ms Chelsea Dunne dated 7 September 2022, page 6.

   [2] Transcript of proceedings, page 46 lines 35-47.

   [3] Transcript of proceedings, page 46 lines 15-20; page 47 lines 8-10.

   [4] Transcript of proceedings, page 15 lines 34-35; T Documents, T5: Report of Ms Siobhan Kennelly dated 30 January 2023, page 72.

4. On 15 December 2022, Ms Guy lodged a change of situation form with the National Disability Insurance Agency (the Agency) to request funding for a ‘sex therapist/worker’ to be approved within her Improved Daily Living budget on an urgent basis.[5]

   [5] T Documents, T4: Change of details or change of situation, pages 48-49.

5. On 9 February 2023 the Agency approved a statement of participant supports (SOPS)[6]  which included an increase in Ms Guy’s funding for Improved Relationships (CB Relationships) to provide for an additional 40 hours for individual social skills development. On the same day Ms Guy requested an internal review by the Agency to include funding for a one-hour session with a sex worker, twice a month at a brothel called ‘the Viper Room’ at a cost of $560.00 per hour and an annual amount of $13,440.00[7] (the requested support).

   [6] T Documents, T1C.

   [7] C12: Quote, the Viper Room dated 29 November 2023.

   THE DECISION UNDER REVIEW

6. On 9 March 2023 the Agency notified Ms Guy that they decided to affirm the decision to decline the requested support (the decision under review).[8] On 11 March 2023 Ms Guy applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Agency’s decision.[9]

   [8] T Documents, T2: Internal Review Decision; Section 100(2) National Disability Insurance Scheme Act 2013 (Cth).

   [9] T Documents, T1: AAT application for review of decision.

7. The Tribunal must consider whether the requested support is reasonable and necessary in accordance with section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

8. For the reasons that follow, the Tribunal affirms the decision under review.

   THE RULES, LEGISLATION AND GUIDELINES

   National Disability Insurance Scheme Act 2013 (Cth)

   Section 34: Reasonable and necessary supports

   (1)  For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

   (a)  the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

   (b)  the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

   (c)  the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

   (d)  the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

   (e)  the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

   (f)  the support is most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

   (i)  as part of a universal service obligation; or

   (ii)  in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

   (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

9. Section 34(1) is cumulative and therefore all the criteria must be met.

10. Relevant in deciding whether the criteria under section 34(1) are met are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the supports rules).[10] Part 3 of the supports rules provides as follows:

    [10] See also National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at [201]; McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [41-43].

    Value for money

    3.1     In deciding whether the support represents 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 CEO is to consider the following matters:

    (a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

    (c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d)     for supports that involve the provision of equipment or modifications:

    (i)      the comparative cost of purchasing or leasing the equipment or modifications; and

    (ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

    (e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

11. The Full Court in WRMF considered the meaning of reasonable and necessary supports and stated as follows:[11]

    ‘there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.’

    [11] At [149-151]; See also McGarrigle at [91].

    Operational guidelines

12. The Agency issues Operational guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. The guidelines relevant to this review are the Operational guidelines – Reasonable and necessary supports[12] which provide as follows:

    [12] Webpage: ourguidelines.ndis.gov.au; See also G v Minister for Immigration and Border Protection [2018] FCA 1229 at [171].

    When we decide if the support is value for money, we consider:

    • if other supports would achieve the same result at a substantially lower cost - this

    means there should be a real or material difference in cost

    • if there’s evidence that the support will substantially improve your life stage outcomes and benefit you in the long term

    • if the support will likely reduce the cost of other supports over time

    • how the cost compares to other supports of the same kind in your area

    • if the support will make you more independent, and mean you won’t need as many supports in future, for example, in some circumstances home modifications may reduce the need for home care.

    When we consider the likely cost of supports, we consider the cost over the long term. We consider if the support will help you achieve milestones at different ages or stages of your life and have long term benefits.

    EVIDENCE

    Ms Shaun Guy

13. Since 2017 Ms Guy has engaged with sex workers on a regular basis. Ms Guy gave evidence that since October of 2022 she has attended the Viper Room approximately twice a month to access the service of the Girl Friend Experience (GFE). This service involves ‘showering together…Kissing, touching, talking’ and ‘penetrative sex’. Ms Guy currently pays for this service with her own money.[13]

    [13] Transcript of proceedings, page 64 lines 29-31; page 66 lines 11-31.

14. Ms Guy submitted that her symptoms of anxiety make it difficult for her to establish and maintain intimate relationships. She stated that the GFE at the Viper Room provides her with a ‘safe environment’ where she is able to ‘feel loved and cared for’.[14] When booking her appointments Ms Guy requests the same sex worker and only if she is unavailable will she see another lady. Ms Guy explained, ‘the others are okay to gel with, but she’s a lot easier’.[15]

    [14] Transcript of proceedings, page 84 lines 25-26; C5: Letter of the applicant’s support worker, undated.

    [15] Transcript of proceedings, page 71 lines 1-11.

15. In an email to the Tribunal dated 26 March 2023 Ms Guy stated, ‘I would like sex therapy put on my plan’.[16] On a number of occasions Ms Guy maintained that she will not engage with any allied health therapies because they do ‘not work’[17] and also that ‘is a cultural belief for all people who are Indigenous and First Nations Australians’ that allied health professionals are a ‘waste of taxpayers’ money.’[18]   

    [16] T Documents, T1D: Email of the applicant to the Tribunal, page 51.

    [17] Transcript of proceedings, page 13 lines 5-8.

    [18] Transcript of proceedings, page 72 lines 13-17.

    Allied health therapists

16. In May 2022 Ms Domonique Doyle, psychologist, reviewed Ms Guy’s future therapeutic requirements and made recommendations that Ms Guy attend a clinical psychologist for psychotherapy on a fortnightly basis and consistently engage with a psychiatrist to monitor behaviour and well-being on a regular basis. Ms Doyle also recommended continued engagement with a multidisciplinary support team to improve activities of daily living and ‘social exposure’.[19]

    [19] T Documents, T3: Report of Ms Domonique Doyle dated 3 May 2022.

17. Ms Guy attended another psychologist, Dr Peta Stephenson on three occasions through a Medicare Mental Health plan. Dr Stephenson considered that Ms Guy ‘presents with deficits in social and emotional reciprocity and has challenges building meaningful connections with other people’[20] and also experienced difficulties with ‘insistence on sameness, inflexible adherence to routine, or ritualised patterns of behaviour’. Dr Stephenson was the last psychologist Ms Guy attended in November 2022.’[21]

    [20] C9: Report of Dr Peta Stephenson dated 17 August 2023.

    [21] Transcript of proceedings, page 54 lines 5-7; C9 report of Dr Peta Stephenson, psychologist and clinical psychology registrar dated 17 August 2023, page 501.

18. On 3 August 2022 Ms Chelsea Dunne, Behaviour Support Practitioner identified that Ms Guy had difficulty in interacting with people in the community who do not fit her ‘preference’ resulting in a ‘severe problem’ of inappropriate social behaviours such as inappropriate statements towards people with an accent.[22]

    [22] T Documents, T1A.

19. Ms Dunne noted that Ms Guy was prescribed Valium for her anxiety and also Seroquel, a mood stabiliser. Ms Dunne made recommendations for capacity-building supports including psychology, speech therapy, occupational therapy and access to ‘specially trained sex workers/therapists’ to assist Ms Guy to achieve ‘sexual connection’ and work towards her goal to build safe relationships with others in the community including a relationship with a partner.

20. Ms Siobhan Kennelly, occupational therapist assessed Ms Guy on five occasions between November 2022 and January 2023 to ‘holistically consider and define the comprehensive needs and goals’ of Ms Guy with regard to any necessary support required for maintaining independent living in her own home.[23] Ms Kennelly observed Ms Guy as having difficulty with social cues and understanding boundaries and recommended that Ms Guy be provided support to increase her engagement in social groups or community activities.

    [23] T Documents, T5.

21. Ms Kennelly referred to Ms Guy’s behaviours of concern including verbal aggression (swearing and yelling), inappropriate social behaviour (making inappropriate statements towards others around appearance and refusing to work with people of different nationalities, accents, males and individuals over the age of 34 years), sexualised behaviour (making sexualised comments about female’s appearance) and property damage (throwing tools around if what she is making is not going to plan).[24]

    [24] T Documents, T5, pages 73 and 80.

22. Ms Kennelly stated that in the last six months, five support workers had ceased employment with Ms Guy due to behaviours of concern and inappropriate behaviour. Ms Kennelly recommended capacity-building supports including psychology, speech therapy and occupational therapy to improve emotional regulation, behaviour management and social skills. After six months Ms Guy ceased engagement with Ms Kennelly’s services.[25]

    [25] C2: Interim assessment report of Ms Kristina Bjork, Lutheran Services Disability dated 12 July 2023, page 250.

23. On 23 May 2023 Ms Lily Scott, occupational therapist noted that Ms Guy had ceased taking her prescribed medications, and she recommended an increase in Ms Guy’s formal supports including the ongoing services of a psychologist and a behaviour support practitioner to build Ms Guy’s capacity in relation to emotional regulation, coping strategies and managing behaviours of concern. [26]

    [26] C1: Functional capacity assessment report of Ms Lily Scott dated 23 May 2023, page 245.

24. Ms Scott reported that Ms Guy preferred the arrangement of a sex worker to relationships with other individuals, because she is not required to engage in conversation and ‘I do not have to get the person to like me first’.[27] Ms Guy does not engage in sexual activity with other people outside of these professional arrangements and Ms Scott therefore considered it ‘crucial’ that Ms Guy have access to appropriate ‘sex therapy services’.

    [27] C10: Letter of Ms Lily Scott dated 1 September 2023, page 303.

25. In or around December 2023 Ms Guy attended the hospital on a precautionary basis after receiving a snake bite that did not puncture her skin, on advice that she should be seen at the hospital ‘just in case’.[28] On 29 May 2024, Ms Guy submitted an email to the Agency outlining her contentions that:[29]

    ·‘I am asking for founding [sic] for sex workers the Agency has offered therapy and I have declined’;

    ·‘Other therapists are $2000 billion per year and to save the taxpayers sex workers would be cheaper in the long term run rather than alternative therapies’; and

    ·‘Long term benefits from sex workers over alternative therapies I am learning how to understand people [sic] points of view and breathing techniques and talking and building copping [sic] strategies so when I am out in the community I know how to talk to people and remove myself from any situation that may occur’.

    [28] Transcript of proceedings, page 16 lines 11-27.

    [29] C21: Email of the applicant to the Tribunal dated 29 May 2024, ‘Statement of issues i am asking for founding for sex workers as the National disability insurance Agency has offered therapy which i have declined.’

    Mr Markus Harkonen, friend

26. Mr Harkonen is 55 years old and has been friends with Ms Guy for almost 17 years. Mr Harkonen provided Ms Guy with a letter of support dated 10 July 2024[30] and gave oral evidence at the hearing.

    [30] C27: Letter of support of Markus Harkonen dated 10 July 2024.

27. Mr Harkonen’s observation was that ‘after visiting the sex workers there is a level of euphoria and joy for Shaunee and a relaxed calm for a time after her visit’ and that ‘it would be good if the joy bubble could last longer.’ Mr Harkonen considered that, in relation to the requested support Ms Guy sought ‘a girlfriend, a close loving relationship’.[31]

    [31] Transcript of proceedings, page 91 lines 40-45; page 103 lines 15-20.

    Dr Leda Barnett, psychologist and co-chair of the Australian Indigenous Psychologists’ Association

28. Dr Barnett has 13 years’ experience as a counselling psychologist, including providing a range of psychological interventions for First Australians and the wider population[32] and working with people living with ASD.[33] Dr Barnett assessed Ms Guy on two occasions and produced two subsequent reports dated 5 April 2024 and 3 May 2024.[34] She also gave evidence at the hearing.

    [32] D2: Curriculum Vitae of Dr Leda Barnett, page 492; Transcript of proceedings, page 113 line 30 to page 114 line 31.

    [33] D2: Report of Dr Leda Barnett, page 501.

    [34] D3: Request to Dr Leda Barnett for supplementary report dated 29 April 2024; D4: Supplementary report of Dr Leda Barnett dated 3 May 2024.

1. Dr Barnett considered that Ms Guy’s interactions with others were influenced by ‘a complex interplay of trauma-related experiences and her ASD diagnosis’. In her observations Dr Barnett stated that Ms Guy’s symptoms appeared to stem from reduced cognitive functioning, deficits in social cognition, poor emotional regulation and impulse control issues.[35] These symptoms were reported to include:[36]

   ·impacted ability to connect with others in the community, manage emotions during interpersonal interactions, and build meaningful social networks;

   ·avoidance of some people and difficulty trusting others; and

   ·difficulty in communicating with others and establishing and maintaining relationships.

   [35] D2, page 506.

   [36] D2, pages 501-503.

2. Dr Barnett’s opinion was that Ms Guy had provided insufficient evidence of consistent and ongoing engagement with allied health services[37] and also limited documentation regarding engagement with different treatments.[38] Dr Barnett recommended best-practice therapy of a ‘personalised’ and ‘tailored’ approach that would improve Ms Guy’s functional capacity and would be provided by allied health services as follows:[39]

   ·engagement with a psychiatrist, psychologist, multidisciplinary support team, speech pathologist, occupational therapist, physiotherapist, podiatrist; social workers, support coordinator and plan manager; and

   ·psychological care aimed at reducing ‘triggers’ over time and consequently improving functional capacity including memory reconsolidation, systematic desensitisation, exposure therapy, EMDR, inner child therapy, desensitisation/reconsolidation therapies, trauma-focused cognitive behavioural therapy (CBT) and other affective psychotherapies.

   [37] D2, page 507.

   [38] D2, page 508.

   [39] D2, page 510.

3. Dr Barnett did not consider that a sex worker would provide any therapeutic benefit or assist Ms Guy to achieve a sexual connection and stated, ‘the development of Shaunee’s psychological wellbeing and social and emotional abilities through work with qualified professionals is crucial for safe social participation, understanding how to connect with others, and engaging in intimate relationships.’[40]

   [40] D2, page 510.

4. Dr Barnett emphasised the ‘significant difference’ between the roles of a sex therapist and a sex worker, explaining that sex therapists are qualified counsellors and mental health practitioners with a specialty in sex therapy. Dr Barnett stated, ‘Sex therapy addresses multiple areas of sexuality including communication, consent and emotional intimacy’. Dr Barnett concluded that the ‘transactional relationship’ with a sex worker does not accurately represent intimate relationships outside of paid services[41] and emphasised the need for ‘holistic care’ by a multidisciplinary team.[42]

   [41] Transcript of proceedings, page 125 lines 1-18.

   [42] D2, page 511.

5. Dr Barnett acknowledged the ‘temporary improvements’ after sessions with a sex worker including ‘improved concentration and compliance with support worker engagement’[43] and stated that it was important not to confuse short term improvements with long-term wellbeing. Dr Barnett explained that unless and until the underlying causes of sexual dysfunction have been addressed, any non-psychologically qualified professional (such as a sex worker) lacks the training necessary to understand the complexity of the human psyche and therefore engagement can potentially either perpetuate the dysfunction or create further dysfunctional behaviours, including dependency.

   [43] D2, page 517.

6. Dr Barnett further considered that it was possible that Ms Guy may become dependent on sex workers as a result of the ‘feel good’ emotions associated with hormones released during sex which can make someone feel ‘loved and care for’, stating that:[44]

   ‘when it comes to having sex, and in particular climaxing, there’s a chemical release that happens, and it’s oxytocin.  It’s a hormone…And it forges a bond between people having sex, and it also – it’s also the hormone that creates a bond between babies and their mothers when the baby’s born, and it’s got calming effects.  And so even just considering this example, I’d question how this bonding influences Ms Guy’s emotional wellbeing’.

   [44] Transcript of proceedings, page 120 lines 40-47.

7. Dr Barnett was asked for her comment on the evidence that all people who are Indigenous ‘have the cultural belief that allied health professionals are a waste of taxpayers’ money’ and ‘will not accept working with allied health professionals on cultural grounds’. Dr Barnett responded, as an Indigenous Australian that these are both not correct[45] and suggested that the issue is not accessibility to these services but rather Ms Guy’s willingness to engage.[46]

   [45] Transcript of proceedings, page 128 lines 1-9.

   [46] D2, page 514 at [17].

   CONSIDERATION

8. The Tribunal’s task in reviewing the decision under review is to stand in the shoes of the original decision maker[47] and determine whether the requested support is ‘reasonable and necessary’ such as the expenditure of public funds for the requested support is justified on the evidence before it.

   [47] Spires and National Disability Insurance Agency [2023] AATA 1230 at [6], citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37-38], [45-46] (Kirby J), [99] (Hayne and Heydon JJ), [140-143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

9. The evidence establishes that as a result of her diagnosis of ASD Ms Guy experiences impairments in relation to the following:

   ·her ability to connect with others in the community and build meaningful social networks;

   ·difficulty in communicating with others and managing emotions during interpersonal interactions;

   ·difficulties in establishing and maintaining relationships; and

   ·a lack of interpersonal skills.

10. I consider also the evidence that Ms Guy experiences symptoms of anxiety arising from these impairments which she finds more manageable in predictable environments and a consistent routine.[48] Ms Guy referred to past trauma including growing up in foster care and stated as a result of her anxiety around people she does not trust, that during her regular appointments at the Viper Room she feels ‘safe’ and cared for.[49]

    [48] See [17] Reasons for Decision; D2, page 518.

    [49] C13, page 320.

11. Notwithstanding, the legislative scheme is based on a functional, practical assessment of what Ms Guy can and cannot do.[50] I have considered how the requested support and alternative supports will address her particular impairments and individual support needs[51] and enable Ms Guy to live as normal a life as possible given her disability, and not to satisfy every want.[52]

    Assessing proposed supports: Value for money

    [50] Mulligan v National Disability Insurance Scheme [2015] FCA 544 at [56].

    [51] National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 at [26]; See also WRMF at [141] and [151-152] and Respondent’s Closing Submissions dated 27 August 2024 at [15-16].

    [52] MDCT and National Disability Insurance Agency [2022] AATA 697 at [62]; NJSC and National Disability Insurance Agency [2022] AATA 4449 at [104]; See the Rules, Legislation and Guidelines, [9-12] Reasons for Decision.

    Comparable supports which would achieve the same outcome at a substantially lower cost.

12. The proposed support provides for one-hour sessions per fortnight of the GFE including activities of showering together, kissing, talking and having penetrative sex for an hourly total cost of $560.00. In considering whether there are comparable supports which would achieve the same outcomes I note the following:

    ·Ms Guy’s home has a shower facility and she is able to independently complete all showering and bathing tasks independently;[53]

    ·Ms Guy attends a monthly transgender group meeting which provides her with meaningful social interaction.[54] These meetings run for two hours and are free of charge. Ms Guy has friends at the transgender group and also three close friends including Mr Harkonen. She also maintains weekly phone contact with her foster parents, an uncle and an aunt;[55] and

    ·Ms Guy does not suffer physical sexual dysfunction and is able to independently achieve an erection and also sexual release with the assistance of pornographic materials.[56] No submissions were made in regard to the cost, if any of these materials.

    Evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to Ms Guy

    [53] T Documents, T5, pages 72 and 83.

    [54] Transcript of proceedings, page 44 lines 23-25.

    [55] D2, page 502.

    [56] Transcript of proceedings, page 63 lines 19-24.

13. The evidence of Dr Barnett was that a sex worker would not improve upon Ms Guy’s functional capacity and that there is no evidence of long-term improvement. I note that Ms Guy has been seeking paid services of sex workers since 2017 with no substantiated improvements to her functional capacity including behaviours of concern and social and emotional deficits, and that during this period Ms Guy’s support workers have continued to choose not to remain working with her. I accept Dr Barnett’s evidence and the substantial reasoning she provided.[57]

    Whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term

    [57] Respondent’s Closing Submissions at [25-32].

14. I accept Dr Barnett’s opinion outlined at [30-35] above that a sex worker will not provide Ms Guy with the appropriate supports required to address her particular disability needs.[58] Dr Barnett stated in her report that, as a result of her ASD (which Ms Guy was granted access to the scheme on the basis of) Ms Guy experiences social and emotional impairments including the following:

    ·difficulty with social interactions and communication;

    ·difficulty seeing other people’s perspectives;

    ·expressing her distress and frustration aggressively;

    ·difficulty establishing and maintaining relationships;

    ·fixated interests;

    ·comfort with routines and patterns and difficulty managing unexpected change; and

    ·repetitive behaviours.

    [58] WRMF and National Disability Insurance Agency [2019] AATA 1771 at [24].

15. Ms Doyle, Dr Stephenson, Ms Dunne and Dr Barnett made clear recommendations for psychologist supports and I accept their evidence that Ms Guy requires these supports to address her social and emotional impairments so that she can participate in all aspects of personal and community life.[59] Historically Ms Guy has disengaged from psychologist supports[60] and this is somewhat understandable in the context of her disability. Relevantly, in the matter of HTDD and National Disability Insurance Agency [2024] AATA 725 the Tribunal observed that:[61]

    ‘Counsel for HTDD submits that she requires supports to address her disability notwithstanding that intrinsic to her disability is resistance to supports. This submission is made sensibly and perceptively, in recognition and understanding of the complex nature of HTDD’s disability and the interplay of her impairments.’

    (Tribunal emphasis)

    [59] National Disability Insurance Agency v Davis [2022] FCA at [69].

    [60] C9, page 301.

    [61] At [207].

16. As a result of her impairments Ms Guy struggles to engage in face-to-face interactions and to express her emotions which I consider in the context of her oral evidence that she has not seen a psychiatrist ‘since I was a child’ and ceased engagement with a psychologist ‘years ago’.[62] However Ms Guy’s need for recommended, evidence-based supports is not reduced by her resistance to those supports, or indeed her preference for other supports notably a sex worker.

    Whether the support will increase Ms Guy’s independence and reduce her need for other kinds of supports

    [62] Transcript of proceedings, page 55 lines 34-36.

17. There is no evidence that, since 2017 the regular engagement of a sex worker has increased Ms Guy’s independence in relation to her impairments,[63] ameliorated her behaviours of concern or improved upon the retention of her support workers. I consider also that Ms Guy maintains a preference of one preferred sex worker and has not increased her ‘exposure’ to any other relationships.[64] Ms Guy gave evidence that, at the time of the hearing she has never had a consensual sexual relationship outside of a commercial service.[65]

    [63] See [37], [41] and [42] Reasons for Decision.

    [64] See [16] and [30] Reasons for Decision.

    [65] Transcript of proceedings, page 63 lines 35-36.

18. I accept the evidence of Dr Barnett a sex worker provides some ‘temporary improvement’ to Ms Guy’s concentration and compliance with support worker engagement, and that this is considered with the observations of Mr Harkonen and Ms Guy’s previous support worker.[66] Dr Barnett maintained that a sex worker would not support Ms Guy’s long-term functionality and well-being and may lead to further dysfunctional behaviours including dependency.[67]

    Section 34(1)(c): Does the requested 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

    [66] See [27] Reasons for Decision.

    [67] D2, page 510.

19. On the evidence before the Tribunal the cost of $13,440.00 for 24 hours of access to a sex worker is not reasonable.[68] Most of the therapeutic benefits[69] that Ms Guy relied on in her application including feelings of happiness and improved compliance with her support worker are most satisfactorily explained by the short-term effects of oxytocin that make her feel calm and ‘loved’.[70] Other benefits were purely speculative.[71] No evidence in regard to the cost, other than a quote from the Viper Room provided upon Ms Guy’s request[72] was provided to explain the duration and frequency of sex worker engagement requested.[73]

    [68] Respondent’s Closing Submissions at [96-100].

    [69] See [4], [14] and [24-25] Reasons for Decision.

    [70] NJSC and National Disability Insurance Agency [2022] AATA 4449 at [101-104].

    [71] See [25] Reasons for Decision.

    [72] C12: Quote, the Viper Room dated 29 November 2023.

    [73] Transcript of proceedings, page 33 line 3 to page 34 line 3.

20. Ms Guy is currently funded $16,363.05 for relationship capacity-building supports including 45 hours of specialist behaviour interventions support, 20 hours of training in behaviour management strategies and 40 hours of individual skill development. I consider this achieves a significantly higher degree of benefit at only a slightly higher cost and, relative to a sex worker, represents value for money.

21. I consider that it is by Ms Guy’s preference that she does not engage with disability-specific, capacity-building supports. I accept that the therapeutic benefits Ms Guy seeks with regard to appropriate intimate relations and achieving sexual connection are best provided by a trained sex therapist specialising in ASD who is familiar with Ms Guy’s ‘complex presentation’ and also a wider multidisciplinary team in the delivery of a tailored, holistic approach.[74]

    [74] Transcript of proceedings, page 122 lines 9-19.

22. I am not satisfied that the requested support represents value for money and therefore the reasonable and necessary criteria cannot be met. The decision under review is affirmed.

51.     I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member S Smith.

.........................[SGD]............................

Associate

28 August 2024

Dates of hearing:

25 and 26 July 2024

Applicant:

Ms Shaun Guy
(Self-represented)

Solicitor for the Respondent:

Ms Ashleigh Dupe
(Maddocks Lawyers)

Counsel for the Respondent:

Day final submissions received:

Ms Melissa Fisher

27 August 2024