HUMAN RIGHTS - National Disability Insurance Scheme - funding of supports and services - where respondent an approved participant under the Scheme - where decision‑maker declined request for funding of claimed support - where Administrative Appeals Tribunal found claimed support of a specially trained sex therapist was a reasonable and necessary support - appeal from decision of Tribunal - whether Tribunal denied applicant procedural fairness by manner in which it described and understood the nature of claimed support requested by respondent -whether Tribunal properly approached question as to whether claimed support reasonable and necessary - application of s 34 of National Disability Insurance Scheme Act 2013 (Cth) - whether Tribunal's findings of fact supported by evidence
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading National Disability Insurance Agency v WRMF
Sign in free to access the full text
Details
AGLC
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Case
[2020] FCAFC 79
Decision Date
CaseChat Overview and Summary
The National Disability Insurance Agency (NDIA) appealed against a decision of the Administrative Appeals Tribunal (AAT) which had upheld an application by WRMF for funding for a specially trained sex therapist. The NDIA argued that the AAT had failed to give the agency procedural fairness by its description and understanding of the nature of the claimed support. The NDIA also argued that the AAT had not properly approached the question of whether the claimed support was reasonable and necessary under s 34 of the National Disability Insurance Scheme Act 2013 (Cth). The AAT had found that the claimed support was reasonable and necessary, and the NDIA sought to appeal this finding. The court found that the AAT had not failed to give the NDIA procedural fairness by its description and understanding of the nature of the claimed support. The court also found that the AAT had properly approached the question of whether the claimed support was reasonable and necessary. The court found that the AAT's findings of fact were supported by evidence and that the AAT had not erred in law in finding that the claimed support was reasonable and necessary. The appeal was dismissed with the applicant to pay the respondent's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The applicant pay the respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Similar statements are repeated in the position paper, for example:The [respondent] herself has set out in her Statement the multiple benefits she obtains from paid sex services and the reasons why she requires a professional with disability specific experience to engage in sexual intimacy. (at [64])… the difference in the [respondent's] case is that her disability prevents her from being able to have sex without a trained disability-specific worker. (at [73])… the [respondent's] MS results in multiple functional impairments that prevent her from having sex with anyone but a sex worker with experience in providing sexual services to clients with disability and from providing sexual stimulation to another person. (at [83])Other evidence before the Tribunal The hearing before the Tribunal was conducted over four days listed between 30 April 2018 and 1 May 2019. The fourth day was for submissions. The respondent gave evidence and was cross‑examined. A report was provided to the Tribunal by Ms Elizabeth Dore, a relationships and sexuality counsellor with a Bachelor of Special Education and counselling qualifications. Ms Dore was also cross‑examined. Ms Dore's report includes statements to the effect that the respondent's personal care needs whilst having sexual relations could '… be performed by a sex worker, experienced in working with people with disability'. Ms Dore concludes that the respondent:will have a greater level of emotional wellbeing and will be safer in a paid arrangement with a sex worker who is a member of a known professional network and has a reputation for safety and care when working with people with disability. The respondent's then solicitor, Lindsay Ash, provided a statutory declaration to the effect that she had spoken to the president of an organisation that describes its role as (amongst other things) providing adults with disability referrals to disability-friendly sex services (Organisation). The Organisation also provides 'Service Provider Disability Awareness Training workshops'. Ms Ash contacted the Organisation and asked for the cost estimates of a two hour booking for a female client of a female sex worker who had attended the Professional Disability Awareness Training workshop and who was on the Organisation's referral list of disability friendly workers. That information, which listed seven potential service providers, was provided by the Organisation and attached to Ms Ash's statutory declaration dated 6 May 2019. There were other written materials from the Organisation before the Tribunal that referred to the Disability Awareness Training workshops provided by the Organisation.Transcript of hearing On the first day of the hearing the respondent was asked about the services she had been receiving from a sex worker. She explained that she had been seeing the same sex worker for two to three years and it had taken some time for the person to develop a rapport by way of knowing her physical needs and limitations, but that the person had come to understand those matters well.
Decision
Reasons for decision
It will be necessary to return to the manner in which the respondent's claim was addressed and described during the course of the Tribunal hearing, but it is sufficient by way of introduction to note that in her statement filed in the application before the Tribunal, the respondent described her appeal as follows:My appeal is about whether it is reasonable and necessary for the National Disability Insurance Agency (NDIA) to include funding for sexual services in my National Disability Insurance Scheme (NDIS) Plan.The Tribunal's decision The Tribunal commenced by describing the support requested by the respondent (references in the reasons to the 'applicant' being references to the respondent on this appeal):[1]In this review, the applicant claims that her particular circumstances as a participant in the National Disability Insurance Scheme produce the result that she has a need for funding from the Scheme for a reasonable and necessary support. The support is requested for the services of a sexual therapist, specially trained in treating disabled persons. The Tribunal then noted the sensitive nature of much of the evidence as to the effect of the respondent's disability on her sex life. The respondent disclosed very particular details of her medical conditions and the physical effects of such conditions, and the Tribunal quite properly chose to suppress those details from the public record of its reasons, and instead chose to provide separate confidential reasons. The parties have those confidential reasons. It was not relevantly in issue on the appeal that the respondent suffers from significant medical conditions that prevent her from participation in a mutually fulfilling sexual relationship and that otherwise prevent her from obtaining sexual release in any unassisted manner. It is not necessary to descend into further details for the purpose of the appeal. The Tribunal then said as follows:[3]I should stress that this case does not, in my opinion, throw up for decision the question whether the services of a sex worker ought, on the proper construction of the Act to be funded for persons with a disability if their needs require it. The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference. She seeks those services not because she does not have a life partner (although she does not have or expect ever to have a partner). As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to obtain sexual release. Nor, if she ever found a partner, would she be able to sexually stimulate the partner, because of matters referred to in the confidential reasons. Her condition also prevents her from masturbation.[4]The respondent submits that the applicant is seeking the services of a replacement sexual partner. In one sense, that is true, if one focuses only on the sexual release which is the intended result of sexual congress. The word 'partner' suggests a more permanent relationship than the applicant seeks. Nor do I accept that the applicant is seeking a 'paid friend' as the respondent seems also to submit. The respondent says that the funding claimed is neither for a support, nor for a reasonable and necessary support contemplated or supported by the general principles of the Act.[5]The word 'support' is a description of a class which includes general supports and reasonable and necessary supports. General supports means services provided by the agency and reasonable and necessary supports which are funded by the agency. There is no question of general supports in this case, and the question whether this is a support comes down to what I regard as the critical question in this case, whether the applicant is entitled to the reasonable and necessary support claimed. The concept of a support is not defined, except by saying that it includes general supports. It means the same as 'assistance', and so understood, it is satisfied when one considers what the applicant claims.[6]The question whether the support claimed is a reasonable and necessary support is the ultimate question in this case, and is the subject matter of these reasons.[7]To a certain extent the evidence and issues argued on this review have ranged beyond the particular facts and circumstances of the case, and have dealt with the more general question whether the services of a sex worker can be a reasonable and necessary support for a disabled person. That sort of question, if it ever arises, is one on which strong views might be held, perhaps on both sides of the issue, by the community, whose funds are used to meet government expenditure. There is a facility in the Act for such a question to be dealt with by representative governments rather than by the executive (including this Tribunal) simply construing the Act and applying it to the particular facts and circumstances of the case. That facility is contained in s.35(1)(b) of the Act, which enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimous agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act. Such a rule may be made either in advance of or after a decision has been made by the executive about the way in which the Act operates. If such a rule is passed, it will bind the executive arm of government to give effect to it. Otherwise, the executive will be required to decide the legal and factual questions arising under the Act as it stands. For the most part, although some evaluative questions arise if the matter is approached in that way, few discretionary decisions under the Act. No political considerations are relevant to be taken into account by the executive, including this Tribunal. Such considerations will be taken into account by representative governments deciding whether or not to make a special rule under s.35(1). Of course, the States and the Commonwealth may not be able to agree.[8]As will appear, the general question to which I have referred in [3] and [7] above does not arise in this case, because the review is concerned with the particular circumstances of the applicant, and they are, as I have said, very unusual. I will not deal with any considerations relating only to the general question, because it is not necessary to decide the general question to deal with the issue arising on the review, and since decisions of this Tribunal are normative both within the Tribunal and within the agency, care ought to be taken in this Tribunal to decide no more than is necessary to be decided on a review.(footnote omitted)
Ratio Decidendi
Legal Principle Established
Ms Ash's statutory declaration referred to above was presumably provided in response to that request.Consideration It is true, as the Agency contends, that the respondent in her own documents and evidence used the expression 'sex worker' on many occasions. It can also be accepted that the term 'sex worker' was used by the Agency, the respondent's legal counsel and the Tribunal on numerous occasions. However, we reject the Agency's proposition, inherent in its appeal ground, that the expression was used by the parties during the course of the hearing as a descriptor with an agreed or limited content. 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. We say this for a number of reasons. First, and by way of background, the Agency was aware that a range of terminology might be used to describe services of a sexual nature. Some of the Agency's own descriptions prior to the Tribunal hearing vary, and are conflicting. Its file note of 27 March 2017 records that 'the NDIS does not fund adult services'. Its internal email of 28 March 2017 records that 'funded supports to pay for sexual services is inconsistent with our legislation', and 'the NDIS does not pay for sex workers … It is not a disability specific need'. The Agency's media statement of 2 June 2017 referred to both sex workers and sexual therapy, suggesting a potential distinction but also suggesting a blanket prohibition on funding for services that involve sexual activity. The Agency therefore ought to have been on notice that care was required in order to describe the actual services that a participant might seek, and that euphemistic expressions might tend to obscure the true nature of a claim. Second, it is artificial to place undue weight on descriptions deployed by the Tribunal and used at [3] of its reasons. The Tribunal chose to use the term 'sex therapist' in contradistinction to the term 'sex worker'. It is readily apparent from that paragraph that the Tribunal chose to use the term 'sex worker' to refer to someone who provides what might otherwise be described as prostitution services to the general, able-bodied public (and presumably chosen at least in part to avoid use of a term which might be considered pejorative). However, it is not enough to assume that when others, including the respondent, used that expression they did so with the same content in mind. It is important to bear steadily in mind that the terms must be considered in the context in which they were used by the parties. Third, it is abundantly clear from the matters referred to at [77]‑[91] above that 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.