VXDY and National Disability Insurance Agency

[2023] AATA 3209

VXDY and National Disability Insurance Agency [2023] AATA 3209 (9 October 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/6740

Re:VXDY

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:9 October 2023  

Place:Melbourne

The Tribunal sets aside the decision under review dated 10 August 2022 and substitutes it with a decision that the requested supports access to a sex worker, podiatry, remedial massage, and physiotherapy are not reasonable and necessary supports.

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

Dr Stewart Fenwick, Senior Member

Catchwords

NATIONAL DISABLITY INSURANCE SCHEME – reasonable and necessary supports – mental health conditions – other health conditions – sex worker and various allied health supports – relationship of supports to disability considered – consideration of best practice – decision set aside and substituted

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

McLaughlin and National Disability Insurance Agency [2021] AATA 496
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH v National Disability Insurance Agency [2021] FCAFC 189

VGCP and National Disability Insurance Agency [2020] AATA 5107

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

9 October 2023

BACKGROUND

1. VXDY applied to the Tribunal on 17 August 2022 for review of a decision of the Respondent agency, dated 10 August 2022, which affirmed a prior decision denying the provision of certain requested supports.

2. The Applicant became a participant in the National Disability Insurance Scheme (NDIS) in mid-2020 on the basis of the mental health conditions; Major Depressive Illness, Anxiety, and Post-Traumatic Stress Disorder, against a background of a workplace incident in 2018. He is in receipt of the Disability Support Pension.

3. Subsequently, in mid-2022, a 24-month NDIS Plan was approved for VXDY with funding for core supports of just over $146,000 and capacity building supports of just over $26,000. VXDY sought internal review twice, and the plan was also amended upon remittal under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act) in February 2023, and is presently in place until a date in 2024.

4. The Applicant represented himself before the Tribunal. He had been assisted in a previous application for review (2020/6469) that was withdrawn. A Statement of Lived Experience lodged in this prior matter was referred to in evidence during the hearing. Additional medical material was provided by VXDY during the hearing (Exhibit A1). This material comprises a recommendation for physiotherapy for a shoulder complaint, dated 13 July 2023, and the report of Dr Vinay Kumar, consultant psychiatrist, dated 5 May 2021.

5. The Respondent lodged documents pursuant to s 37 of the AAT Act, a Statement of Facts, Issues and Contentions (RSFIC), and a Hearing Book (HB). Material lodged includes a number of medical reports previously lodged in matter 2020/6469, pursuant to an order releasing the Respondent from the implied undertaking otherwise pertaining (a ‘Harman’ order).

6. The Applicant gave evidence at the hearing, and two medical experts appeared: Mr Jeffrey Cummins, forensic psychologist; and, Dr Jacqueline Rakov, consultant forensic psychiatrist.

   Supports in Contention

7. The decision under review addressed five supports: access to a sex worker; psychology services; podiatry; remedial massage therapy; and domestic cleaning and yard maintenance. VXDY also sought in this review phase access to a dietician, and self-management of his support coordination.

8. During the course of this matter, VXDY withdrew his claim for domestic cleaning and yard maintenance (RSFIC [12]), and the plan as amended on remittal provided for self-management of support coordination. The Respondent also advised that a proposal had been made that the request for the psychology and dietician supports be provided (RSFIC [13]), a position reiterated in submissions at the hearing.

9. During the hearing, the Applicant referred to a prior request for physiotherapy in respect of a shoulder injury. It transpired that neither myself nor the Respondent’s counsel had been informed of this support. I determined that, consistent with the consent orders of the Full Court of the Federal Court of Australia in QDKH v National Disability Insurance Agency [2021] FCAFC 189, dated 18 October 2021, consideration should be given to this matter, insofar as adequate procedural fairness could be afforded the Respondent.

10. Accordingly, at the hearing, the parties addressed four supports: access to a sex worker; podiatry; remedial massage; and physiotherapy.

    LEGISLATION

11. One of the criteria for participation in the NDIS is meeting the disability requirements in s 24 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). This means that a person has been found: to have a disability attributable to one or more impairments (s 24(1)(a)); which must be permanent (s 24(1)(b)); result in substantially reduced functional capacity in one or more specified activities (s 24(1)(c)); affect the person’s capacity for social and economic participation (s 24(1)(d)); and, NDIS support is likely to be required for their lifetime (s 24(1)(e)).

12. Participant Plans are established pursuant to Part 2 of the Act. Under s 33 a plan must include a statement of participant supports that specifies the reasonable and necessary supports (if any) that will be funded under the NDIS (s 33(2)(b)). Section 34(1) provides that a decision-maker must be satisfied of all of the following in relation to the provision of each 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.

13. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) were made pursuant to s 34(2) of the Act, and provide for matters to which regard is to be had when considering the matters specified above. Of particular relevance is Part 3 ‘Assessing proposed supports’, which provides as follows:

    (a)r 3.1: in considering whether a support represents value for money consideration is to be given, among other things, to:

    (i)‘whether there are comparable supports which would receive the same outcome at a substantially lower cost’;

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

    (iii)‘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 …’; and

    (b)r 3.2: in deciding whether a support is, or is likely to be, effective or beneficial having regard to current good practice, consideration is to be given to matters including the lived experience of the participant and expert opinion.

14. General criteria for supports are identified in Part 5. These include r 5.1 which provides, relevantly, that a support will not be provided or funded if it is not related to the participant’s disability, duplicates other supports, or relates to day-to-day living costs.

15. Schedule 1 to the Support Rules identifies considerations relating to whether supports are most appropriately funded through the NDIS. Rule 7.2 provides that these considerations must be taken into account when deciding whether a support is more appropriately funded by the NDIS or another service system. I summarise relevant rules as follows:

    (a)r 7.4: the NDIS will be responsible for supports delivered by health practitioners where ‘directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment’; and

    (b)r 7.5: the NDIS will not be responsible for ‘clinical treatment of health conditions, including ongoing or chronic health conditions’.

    ISSUES

16. The issue for consideration in this matter is whether the four specific supports identified above are to be considered reasonable and necessary supports, and therefore funded by the NDIS.

    EVIDENCE

    Applicant

17. The goals identified in VXDY’s 2022 plan (T4) can be summarised as follows:

    (a)Short term: attend appointments and manage overall health and wellbeing with support, and improve capacity to engage in social and recreational activities with support;

    (b)Medium or long term: to ‘experience sexual expression, in the form of using escorts and sex workers to enable better sexual experiences.’

18. In his Statement of Lived Experience, the Applicant identifies a range of diagnosed health conditions that he states have resulted from, or were exacerbated by his workplace injury. These conditions include: Type 2 diabetes; Major Depressive Disorder; Anxiety and Panic Disorder; chronic asthma; obesity; and erectile dysfunction. He attributes a range of physical and mental limitations to his conditions, including mobility issues, ‘PTSD symptoms’, difficulty with weight management, and issues with maintaining both intimate relationships, and accessing the community. He states that he has been self-funding treatment by a psychiatrist and remedial massage.

19. VXDY also explains that he has experienced homelessness, has two children with his ex-partner, and has experienced financial strain. The Applicant states that he struggles to cook for himself, receives funding to assist with cleaning and gardening, and has no support from family members. VXDY describes his separation from his workplace as traumatic, and associated with aggressive treatment and shouting.

20. VXDY states he has been ‘unable to engage in intimate relationships or enjoy sexual expression since [his] workplace injury’. He is unable to hold an erection, and stated that this has ‘destroyed my confidence and ability to form and keep relationships’. For this reason, he is prescribed Viagra, and seeks ‘funding for supports related to sexual expression, as I feel that I deserve to receive disability-related supports in order to regain my capacity for sexual expression’.

21. The Applicant states further that due to his weight he is unable to reach his feet to care for them, whereas podiatry permits him to have his nails trimmed and feet checked for diabetic sores. He states that, due to his mental health issues, he turns to food as a coping mechanism and the assistance of a dietician helps with weight management. VXDY states that he has had long term assistance with travel needs due to issues with crowds or unfamiliar environments, subsequent to an assault in his early twenties.

22. At different points in the hearing, I sought some specific examples of daily or other regular activity from VXDY. I understood him to indicate that:

    (a)he presently lives in a two-bedroom flat and he intends to move to accommodation closer to his children, who he sees at least once a fortnight;

    (b)a support worker provides assistance 2-3 times per week with tasks including shopping and talking to him about his mental health, and he is able to independently go out for coffee and shop in his local area;

    (c)he receives weekly support for social and community engagement and also the help of a psycho-social coach; and

    (d)in addition to the identified outings, he may visit his father, or try to go for a walk and he attends the gym sometimes three times per week, which includes time on the treadmill and working with weights.

23. At the hearing, VXDY confirmed that he presently takes medication for diabetes, Valium and an anti-depressant. His prescribed dosage of Valium is 25mg per day, but some days it is ‘touch and go’ and he reverts to his previous 35mg dose. VXDY accepted that he was not using anti-depressant medication in early 2022, but had resumed this in recent months.

24. The Applicant also stated that he takes Viagra around every two days when he sees sex workers, but it does not always work. VXDY agreed that he had previously found it difficult to fund the use of sex workers but, since the settlement of his common law claim regarding his workplace injury, he has some limited funds. He agreed that he used sex workers on average three times per week, although it could be more, or less. VXDY also agreed that he was able to be aroused by pornography, and masturbate to ejaculation, but this also depends, and it was ‘up and down’.

25. VXDY stated that he sources sex workers from a particular named escort website and that he only uses those that are ‘disability friendly’ as he wants to ‘have the best care’. He stated that ‘a lot are trained sex-therapists’. When asked to identify their particular skills VXDY stated that they are qualified, and have expertise in mental health.

26. It was put to VXDY that he first sought Viagra in early 2020 but that his erectile dysfunction had not been fully investigated. He responded that he explored the issue with his doctor on many occasions. It was also put to VXDY that there was no medical cause identified for this condition. He agreed that it was considered to be mainly a psychological condition, but said: ‘not much can be done … see the reports’. It was then put to VXDY that Valium can have a sedative effect and cause erectile dysfunction to which he replied that it was not easy to come off this medication.

27. VXDY acknowledged that he had discussed testosterone supplements with his doctor in 2017. He stated that they were not in fact prescribed, but that he accessed anabolic steroids through someone he knew, although denied taking the substance. The Applicant was then taken to medical records demonstrating extremely high levels of testosterone in 2019 that it was put could only relate to the use of anabolic steroids. VXDY responded that he was trying herbal, over the counter supplements. He accepted that testosterone supplements can affect erectile function.

28. VXDY stated that he ‘could live with’ monthly sessions of podiatry but has experienced problems in the past when cutting his own nails. I asked the Applicant whether he had in fact experienced any foot troubles and he replied that his feet can be blue on waking, indicating a circulation issue. It was put to VXDY that he was able to exercise without support of podiatry to which he replied: ‘I am fat, obese and uncoordinated’. I sought clarification from the Applicant how he could manage weights at the gym but not reach his toes. He responded that he used a bench when handling weights. When asked why a support worker could not trim his nails, VXDY stated that he prefers a professional to do it and I understood him to accept that he had sought recommendations from his practitioners for more frequent support than that which is available under Medicare.

    Medical witnesses

29. Mr Cummins confirmed that he had provided three reports, dated: 28 February 2022 (HB24); 30 November 2022 (HB26); and 16 February 2023 (HB27). In the first substantive report, Mr Cummins reported on the use of three clinical tools. VXDY was assessed as minimally depressed, on a second assessment as mildly depressed, with anxiety and stress symptoms in the normal range, and with elevated scores on a third assessment of trauma symptoms [46]-[49]. The Applicant was assessed as having symptoms of Adjustment Disorder with Mixed Anxiety and Depressed Mood with features of traumatisation, and symptoms of Complex PTSD [60].

30. Mr Cummins notes the reported symptoms of erectile impotence. He formed the opinion that this was ‘primarily reflective of his mental health symptoms and the genesis was therefore psychological in type’ and considers these symptoms have affected VXDY’s ability to develop intimate emotional and sexual relations [61]. While recommending engagement with a sex therapist, Mr Cummins considers this would not be particularly appropriate given the Applicant’s reduced level of motivation [62]. Assistance to attend a sex worker regularly, even weekly, ‘would likely be of genuine benefit’ and provide some relief from symptoms of anxiety, depression and low self-esteem [62]. Although Dr Cummins accepts that VXDY displays some narcissistic traits, he does not diagnose Narcissistic Personality Disorder [64].

31. In evidence at the hearing, Mr Cummins maintained his diagnoses despite the low scores attributable to clinical tools. He confirmed the diagnosis of Complex PTSD was made with reference to the recognised diagnostic criteria, and disagreed with Dr Rakov’s contrary position.

32. Mr Cummins reinforced his recommendation for access to a sex worker because this form of interaction would help rebuild the Applicant’s sense of trust with women and relationships. In his personal clinical experience, Mr Cummins had seen very significant benefits with sex therapy, being a mental health worker skilled with patients having sexual difficulties. He stated that he understood direct physical engagement with a sex worker was to be a stepping-stone to finding a partner, and the preferred approach was both sex therapy and a sex worker.

33. When asked how access to a sex worker would reduce reliance upon other supports, Mr Cummins stated that in helping social reintegration it might offer a significant cost saving, particularly if VXDY returned to the workforce. He had seen marked improvements like this with numerous clients but accepted that the support could not go on indefinitely. Mr Cummins also accepted that the Applicant’s use of Valium could contribute to his impotence issues. When VXDY’s current social capacity was outlined, Mr Cummins further accepted that there may be some inconsistencies with his own perception that the Applicant was socially isolated.

34. Dr Rakov prepared reports dated 20 September 2021 (HB36) and 4 May 2022 (HB37). In her first report, Dr Rakov states that she has no grounds to support a diagnosis of anxiety or depression, states her belief that VXDY is dependent upon Valium, and exhibits characteristics of Narcissistic Personality Disorder (HB37, 607). She provides a formal diagnosis of the latter, and states that the Applicant did not present with the symptoms of post-traumatic stress disorder (HB37, 608-609). Dr Rakov notes that VXDY has not benefitted in the past from psychotherapy, but would benefit from ‘regular, long-term therapy that could promote structural personality change’ (HB37, 610).

35. Dr Rakov states that there is no evidence of a ‘specific or enduring sexual dysfunction’ (HB37, 611). She goes on to note that Valium use may be a contributing factor to VXDY’s concerns, and gives the opinion that sexual services ‘are not a psychiatrically indicated means to treat personality disorder’ or the Applicant’s other reported conditions. Further, Dr Rakov stated that ‘formalised companion relationships arrest rather than enhance the opportunity … to pursue authentic social and romantic relationships’ (HB37, 612).

1. In her evidence, Dr Rakov explained that she was not privy to a traumatic incident that might satisfy the diagnostic criteria required for diagnosis of PTSD. She confirmed that no clinical guideline supports the use of sexual services for any psychiatric condition, and she would maintain this position, even if the clinical basis of VXDY’s erectile dysfunction was understood. Dr Rakov also confirmed the impression formed during examination that VXDY did not wish to pursue personal relationships.

2. Dr Rakov explained that testosterone is the hormone responsible for erectile function and that extremely high levels could cause ‘all sorts of problems’. A high dose of Valium could also be a contributing factor. She agreed that exercise could play a role in the treatment of mental health conditions, but psychotherapy in conjunction with medication are the primary treatments.

   Other material

3. In his report (Exhibit A1), Dr Kumar noted that he provided a one-off consultation to assist with a request for continued prescription of Valium. Dr Kumar states the VXDY meets the criteria for ‘Panic Disorder with Agoraphobia, Dysthymia and Post Traumatic Stress Disorder (past).’

4. In a report dated 15 April 2019, Dr Chintanie De Silva, consultant psychiatrist (HB28) states under the heading ‘Impression’: ‘Adjustment Disorder with anxious and depressed mood on the background of features of traumatisation’. A later report, dated 4 February 2021 (HB20), notes provision of care to the Applicant over a nearly two-year period, and states VXDY has symptoms ‘suggestive of Complex post traumatic stress disorder’.

5. Mr Geordy Sebastian, clinical psychologist, reported to Centrelink on 16 January 2020 (HB5) that VXDY had by that date attended 15 sessions, and opines that there is ‘severe functional impact on activities involving mental health function’. In a later report, dated 27 January 2021 (HB18), Mr Sebastian describes providing care since late 2018, recommends ongoing psychology, and observes that VXDY ‘may benefit from opportunity for sexual expression’.

6. GP Management Plans for VXDY’s mental health care from 2018 (HB29) recommend six-monthly foot care checks as a preventative measure under ‘Complications of diabetes’. They also note recommended long term blood sugar levels by reference to HbA1c testing of less than or equal to 7%. Reports of these tests in 2018 and 2019 (HB29, 219, 247) indicate readings below this level.

7. Notes of a podiatry consultation in April 2019 (HB29, 147) record a referral for neurovascular assessment and foot check. It notes in-growing toenails of the great toes, no adverse responses or findings on neurological or blood flow tests, and no reported foot pain. The report indicates ‘Risk category II’ apparently due to the underlying diagnosis of diabetes, but a review period of ‘10/52’ is recommended (meaning a ten week review period). Numerous similar reports are to the same effect and report the trimming of nails and application of emollient.

8. The same podiatrist, Dr Lynne Pham, reported in late 2020 (HB13) that VXDY had reported being unable to leave the house due to foot pain, and noted the importance of foot care for a diabetic person. It recommends monthly podiatry. A report in early 2021 (HB19) is to similar effect, also noting that VXDY reported an inability to reach his toes.

9. Correspondence in 2020 from VXDY’s former treating general practitioner, Dr Dominic Rillstone, addresses both podiatry and remedial massage (HB8, 43). Remedial massage is recommended to assist with muscle soreness from exercise to maintain diabetes control. This recommendation is later adjusted to refer to exercise to maintain mental health, with a link made to the need for podiatry to allow exercise in support of improved mental health.

10. A report from Dr Bede Mahon dated 13 July 2023 (Exhibit A1) states that VXDY has a long-standing shoulder injury and that it would be appropriate to engage a physiotherapist to improve pain and function over the longer term.

    CONSIDERATION

11. I consider it helpful to set out some preliminary observations about the nature of decision making under the Act, particularly given the range of supports in contention.

12. ‘Reasonable and necessary supports’ is not defined in the Act. The Full Court of the Federal Court of Australia has observed that it is a composite phrase, and therefore what is reasonable and necessary in any given case is a matter determined by reference to the legislative context, the purpose of the Act, and the facts of the case (National Disability Insurance Agency v WRMF [2020] FCAFC 79, at [149]-[153]) (WRMF). The Full Court considered, specifically, that sexual activity and sexual relationships can legitimately be regarded as falling within the activities identified in s 24 of the Act [141].

13. It might be said, therefore, that the phrase reasonable and necessary represents a ‘threshold’ justifying the expenditure of public funds, one in which some account must be had of ‘the link between a person’s impairment and their full participation in the community’ (WRMF [151]). It is sometimes put, as is the case in the RSFIC here, that a person has been granted access to the NDIS on the basis of a certain disability (indeed VXDY has been described as having a ‘primary access disability’ and ‘secondary access disabilities’ (RSFIC [4])). The language of the Full Court is not that clear cut, and since the resolution of QDKH, it is accepted that supports not forming part of a decision under review may come within the scope of review before the Tribunal.

14. Accordingly, as acknowledged at the hearing by the Respondent’s representative, a decision on access to supports may appropriately consider those supports for which the access criteria, being primarily the existence of a disability, are met as at the time of the decision.

    Sex worker

15. The Respondent contended in oral and written submissions that this support is not value for money. This is on the basis that other supports such as psychological therapy and other medical treatment have not been explored and therefore other comparable supports may achieve the same outcome at lower cost. It was also contended that this support is not effective and beneficial with regard to good practice. Reliance was placed upon the opinion of Dr Rakov and it was also submitted that VXDY’s circumstances are quite different to those pertaining in WRMF. It was also contended that to the extent that this support addresses erectile dysfunction, as a psychological condition, it duplicates other forms of therapeutic support.

16. Finally, I note the Respondent has proposed that the Applicant be funded additional support in the form of psycho-social therapy from an accredited sex therapist.

17. I accept, as a general proposition, that engagement with sex workers may have the capacity to help VXDY meet his goals and facilitate social participation. It could hardly be otherwise when it is so clearly specified as an aspiration in an accepted plan.

18. Consideration of value for money is somewhat more challenging. I was not presented by either party with evidence or supporting material concerning the costs of services by sex workers, nor with a relative comparison with the costs of alternative supports. Equally, the scope of the support remains somewhat speculative, with the Applicant apparently promoting the idea of multiple sessions per week, and Mr Cummins supporting regular sessions, ‘perhaps weekly’.

19. A further difficulty arises in relation to other matters identified in the rules at r 3.1, and also applies to consideration of what is effective and beneficial. In short, the impact and effectiveness of engagement with sex workers are hard to address given the nature and circumstances of the Applicant’s impairment in sexual function. It is perhaps self-evident that erectile dysfunction may be difficult to categorically classify or evaluate. However, the evidence overall demonstrates that in this case there are multiple probable causes, including those resulting from the effect of medication. More to the point, there appears to be no evidence of detailed diagnostic evaluation of the nature of the Applicant’s condition. Moreover, VXDY’s evidence – while somewhat equivocal at the hearing – is overall to the effect that both erection and release can be achieved without the support of a sex worker, albeit intermittently.

20. With regard to what is good practice, I am faced by competing opinions. Mr Cummins emphasised the benefits of sexual therapy, but also expressed a clear view that physical activity with a sex worker would be beneficial. He was clear that it was only a means to an end, within the context of VXDY’s relationship goal. Dr Rakov does not support engagement with a sex worker at all, and provided quite limited support for other sexual therapy. She also considered that, in any event, VXDY did not present with a clinical diagnosis to justify such support.

21. It is generally acknowledged that a psychiatrist bears different qualifications and a different role to a psychologist in respect of diagnosing and managing mental health conditions. On this basis, I consider I am entitled to place higher reliance upon the expertise of Dr Rakov. While there are other qualified experts who have commented on the nature and severity of VXDY’s mental health, I had the benefit of hearing directly from Dr Rakov, and of putting all the evidence in the context of the Applicant’s own evidence as to his contemporary circumstances. I do not consider his circumstances and impairments, while they may remain significant, to be as dire as portrayed by Mr Cummins. I consider Dr Rakov’s opinion as to the contra-indication of sex worker support to be particularly relevant.

22. I do not dismiss VXDY’s aspirations or his evidence. Under r 3.2, I must give consideration to his lived experience. However, the legislation requires me to reach a state of satisfaction in respect of each of several specified factors. In the face of the mixed evidence as to the nature, origins and character of VXDY’s impaired sexual functioning, I am not able to reach the requisite state of satisfaction as to sex worker support being a reasonable and necessary support.

    Podiatry

23. In written submissions, the Respondent contends that podiatry was a support related to a co-morbidity experienced by VXDY and not an impairment for which he had been granted access to the NDIS (RSFIC [42]). Reference here is made to VGCP and National Disability Insurance Agency [2020] AATA 5107, and at the hearing the decision of McLaughlin and National Disability Insurance Agency [2021] AATA 496 was also cited.

24. The Respondent submitted at the hearing that the medical material relied upon by the Applicant was procured by him specifically for NDIS purposes and, accordingly, does not reflect an actual clinical need. It was contended that VXDY has demonstrated the ability to continue to exercise despite not having podiatry at the frequency sought. It was also contended, in the alternative, that nail maintenance can be provided by an existing support worker.

25. Further contentions advanced were that no link has been demonstrated between podiatry, exercise and an improvement in mental health conditions, being the Applicant’s primary disability. This is particularly so given the evidence supports a need for moderate exercise only. To the extent podiatry, given the records of treatment, reflects grooming only, it duplicates other available supports. Finally, given the Applicant merely expressed a preference for professional assistance, it can be considered a day-to-day living cost.

26. I am not satisfied on the basis of the evidence overall, that there is in fact any underlying need for VXDY to receive podiatry under the NDIS, or indeed at all. In these circumstances, I cannot reach the required state of satisfaction that podiatry as a support, in the context of any disability the Applicant may have, would ‘assist’ in the various ways required by s 34. Rule 3.1 indicates that some form of outcome must accompany the support, and indeed the language suggests it needs to be quite tangible. From the evidence before me, I am unable to determine what specific positive outcome might arise. There is little to no evidence to indicate podiatry has played a constructive role in managing VXDY’s disability. Most certainly, the evidence points to the likelihood that nail care could be managed without podiatry support, and any ongoing review with respect to diabetes is adequately covered by the health system.

27. It follows from these findings, that I have seen no evidence that indicates that the Applicant has a disability of any kind relating directly to his diabetes or his feet. His diabetes appears to be well managed, and no material points to any related impact upon his feet of any kind.

28. Accordingly, I am not satisfied that any of the factors in s 34(1) would be met and podiatry is therefore not a reasonable and necessary support.

    Remedial massage

29. At the hearing, the Respondent contended that this support has been proposed to enhance engagement with exercise, which in turn relates to the Applicant’s mental health and also diabetes. Written submissions point to the proposal for remedial massage on multiple occasions by Dr Rillstone but, to the extent it relates to ‘comorbidities’, contend that the support cannot be reasonable and necessary (citing VGCP again). I note that in the medical material and the Statement of Lived Experience, this support is described as myotherapy and/or remedial massage.

30. While the Respondent accepts that exercise can be beneficial for mental health, it is submitted the criterion in s 34(1)(b) is not satisfied as the support will not facilitate social and economic participation, since there is no evidence VXDY’s capacity to exercise is impaired. Further, the support is not value for money as alternatives have not been explored, and there is no evidence to support consideration of the factors in r 3.1. Equally, there is insufficient evidence for the considerations in r 3.2 and therefore the support cannot be effective and beneficial (s 34(1)(d)). In the alternative, it is also contended that the support is not appropriate to be funded under the NDIS (r 7), and is not related to the Applicant’s disability or is a day-to-day living cost (r 5.1).

31. There is very limited evidence before me about the purported need for, and benefits arising from, remedial massage. It is also, in a manner similar to the request for podiatry, somewhat remote from the Applicant’s disability. While in a general sense, it can be accepted that there is a logical connection between VXDY’s psycho-social disability and the recommendation that he exercise, I must be persuaded that the costs of the support are reasonable relative to the benefits, and the cost of alternatives. More particularly, there is no evidence that VXDY experiences some form of impairment that, per se, invites consideration of this specific support.

32. In short, I consider the Respondent’s position to be correct. That is, the evidence indicates VXDY is capable of undertaking exercise. The fact that he has undertaken remedial massage at his own expense in the past is not itself a sufficient basis to determine that it meets the criterion in s 34(1)(c). Accordingly, I cannot be satisfied that it is reasonable and necessary.

    Physiotherapy

33. In closing submissions, the Respondent offered an interpretation of VXDY’s present plan. It was contended that it includes over $6,000 in flexible funding for allied health supports which do not need to be tied to a particular impairment. However, should the support be pursued as a named support, it was submitted that further evidence would be required to determine that it is reasonable and necessary.

34. I do not have before me adequate evidence to demonstrate to my satisfaction that physiotherapy for VXDY’s right shoulder meets the threshold requirements that I have set out above. The evidence that I do have does not indicate to me that the Applicant’s shoulder condition of itself is the cause of a disability, noting the need for substantially reduced functional impairment. Equally, given the evidence as to VXDY’s present social and community engagement, and I refer in particular to his exercise regime, I am not satisfied the support would assist with the factors identified in s 34.

35. Accordingly, physiotherapy does not amount to a reasonable and necessary support. Furthermore, I note that r 7.5(a) and (c) excludes funding for the clinical treatment of ongoing health conditions or goal-oriented therapies directly related to a person’s health.

    DECISION

36. For the reasons given above the Tribunal sets aside the decision under review dated 10 August 2022 and substitutes it with a decision that the requested supports access to a sex worker, podiatry, remedial massage, and physiotherapy are not reasonable and necessary supports.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 9 October 2023

Dates of hearing:	11 and 12 September 2023
Date final submissions received:	11 September 2023
Applicant:	Self-represented
Counsel for the Respondent:	Ms Tamsin Waterhouse
Solicitors for the Respondent:	Makinson d'Apice Lawyers