VZLK and National Disability Insurance Agency

[2024] AATA 3227

VZLK and National Disability Insurance Agency [2024] AATA 3227 (9 September 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/4164

Re:VZLK

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins

Date:9 September 2024

Place:Brisbane

Decision

Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

(a)Within 28 days of this decision VZLK’s statement of participant supports specifies the following supports as reasonable and necessary:

(i)funding for an Assistive Technology (AT) assessment by a suitably qualified occupational therapist assessor including a comprehensive assessment of VZLK’s remaining sensory abilities to explore suitable AT options to assist VZLK with his functional sexual impairment;

(ii)funding for VZLK to engage with a behavioural support practitioner and develop a behavioural support plan;

(iii)funding for 100 hours per year of support coordination (level 2); and

(iv)funding for additional support coordination (level 2) hours sufficient to facilitate VZLK’s engagement with a behavioural support practitioner and the implementation of a behavioural support plan;

(b)VZLK’s statement of participant supports includes a provision prohibiting the expenditure of any of the funding therein being used to pay the service providers currently engaged to provide plan management for VZLK;

(c)The management of funding for reasonable and necessary supports is to remain the same as the management for those supports in VZLK’s current statement of participant supports;

(d)The date by which the Agency must reassess VZLK’s plan is to be 12 months after the date on which the supports in (a) above are included in VZLK’s statement of participant supports;

(e)VZLK’s current funding for support coordination is to be replaced by the supports specified at subparagraph (a)(iii)-(iv) above; and

(f)And all other supports in VZLK’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified above are included in VZLK’s current statement of participant supports until the reassessment date.

...........................................................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports –request for funding for a sex worker – specialised sex worker – sex therapy – substance of the support – whether the support addresses a particular need of the participant - acquired brain injury - brainstem cavernoma - value for money – support coordination – effective and beneficial – plan management – whether plan-managed fund management would represent an unreasonable risk – request for variation to confidentiality order - decision set aside and remitted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35, 43

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 13, 14, 17A, 24, 32, 33, 34, 35, 42, 43, 44, 99, 100, 103, 209

National Disability Insurance Scheme (Plan Management) Rules 2013

National Disability Insurance Scheme (Specialist Disability Accommodation Rules) 2021 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases

Anassis and National Disability Insurance Agency [2022] AATA 622
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
MDCT and National Disability Insurance Agency [2022] AATA 697
Minister for Immigration and Citizenship v Li [2013] HCA 18
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA
National Disability Insurance Agency v Foster [2023] FCAFC 11
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
WRMF and National Disability Insurance Agency [2019] AATA 1771 

Secondary Materials

NDIS Guide to Plan Management dated September 2020
NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 6 October 2023

NDIS Pricing Arrangements and Price Limits 2021-2022

REASONS FOR DECISION

Senior Member Joanne Collins

9 September 2024

PRELIMINARY

1. VZLK is a 56-year-old heterosexual man and a participant of the National Disability Insurance Scheme (‘the scheme’).

2. VZLK was granted access to the scheme on the basis of his disability which arises as a consequence an acquired brain injury due to brainstem cavernoma (‘BC’).

3. On 4 January 2022, a delegate of the National Disability Insurance Agency (‘the Agency’) approved a plan which included a Statement of Participant Supports (‘SOPS’) for VZLK.

4. VZLK was however dissatisfied with his SOPS. On 7 April 2022, he sought an internal review of that decision.[1] In doing so VZLK requested funding for a number of additional supports. On 28 April 2022, the Agency however affirmed its original decision thereby refusing funding for these additional supports (‘the decision under review’).[2]

   [1] Subsection 100(2) NDIS Act.

   [2] Exhibit 1, Document 32: T Documents, T2: Internal Review Decision dated 28 April 2022.

5. Dissatisfied with this decision on 17 May 2022, VZLK applied to the Tribunal for a review of the decision under review.[3] Since that time, a majority of the supports sought by VZLK have been resolved between the parties. The following two supports however remain in dispute:

   ·20 sessions per year for the services of a sex worker;[4] and

   ·168 hours per year of level 2 support coordination.[5]

   [3] T Documents, T1; Subsection 103(2) NDIS Act.

   [4] Transcript-in-confidence: Day 2, page 116 lines 23-26.

   [5] Transcript-in-confidence: Day 1, page 11 lines 3-10.

6. This review includes very intimate and personal details in relation to the reasons for VZLK’s request for the funding of a sex worker under the scheme. The Tribunal has the power to publish its reasons, in whole or in part and also in confidence where the circumstances make it appropriate to do so.[6] I have decided that the details in relation to VZLK’s request, despite their intimate nature ought to be disclosed in these reasons, under however an anonymised identity. This decision is made on the balancing of the following matters:

   ·The Tribunal’s objective of promoting public trust and confidence in its decision-making;[7]

   ·Subsection 4(10) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) which makes it a general principle that people with disability should have their privacy and dignity respected;

   ·The strong views which might be held, especially by the community, whose funds are used to meet this government expenditure;[8]

   ·The public interest of ensuring the transparency of the Tribunal’s decision-making process; and

   ·The ability of the public to know VZLK’s reasons for seeking such funding under the scheme and the basis of the reasons for the decision I have made. 

   [6] WRMF and National Disability Insurance Agency [2019] AATA 1771 at [2]; See also subsection 35(3) AAT Act.

   [7] Subsection 2A(d), Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

   [8] WRMF and National Disability Insurance Agency [2019] AATA 1771 at [7].

   ISSUES BEFORE THE TRIBUNAL

7. The issues before the Tribunal are whether these supports are reasonable and necessary supports for VZLK.

8. Determination of these issues is made pursuant to the NDIS Act and also the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).

9. At the hearing both parties were legally represented.

   Contentions

10. VZLK contends that as a consequence of his severe disablement he has been unable to perform sexually since 2017, and that being restricted from activities that he previously enjoyed causes him stress and frustration.

11. VZLK further contends that he requires funding under the scheme to access a ‘particular kind of service’ administered by an appropriately qualified sex worker specially trained in sexual services for disabled persons (a ‘specialist sex worker’) to provide a specialised service.[9]

    [9] Document 2: Applicant’s Statement of Issues dated 19 January 2024 at [28].

12. VZLK makes this contention on the basis that he requires a specialist sex worker (‘SSW’) who is willing to perform the ‘activities’ that he believes he requires, having regard to his ‘particular needs’. VZLK submits that he does not merely wish to have his genitals stimulated in order to achieve an orgasm and stated that these ‘sexual therapy’ activities will provide him with the benefits as follows:

    ·the opportunity to engage in human touch and intimacy with another person;

    ·a sense of his own ‘normality’;

    ·an improvement in his mood and sense of well-being;

    ·an improvement in his day-to-day life and social participation;

    ·a reduction in his stress; and

    ·a reduction in his levels of frustration and aggression.[10]

    [10] Transcript-in-confidence: Day 1, page 16 lines 19-26.

13. VZLK concedes that it is reasonable to expect the community to provide the source of a sexual partner however, maintains that he has been unable to find a partner in the community and also that it is ‘very unlikely’ that a partner would undertake the activities that the SSW would perform to enable him to achieve some form of sexual release.

14. VZLK also contends that the funding from the scheme of 100 hours per year of level 2 support coordination is insufficient to coordinate his support needs.

15. In respect of the services provided by a SSW the Agency contends that:

    ·on the current evidence, the Tribunal cannot be positively satisfied of all six criteria set out in subsection 34(1)(a) to (f) of the NDIS Act;[11]

    ·the SSW services VZLK seeks are typical services an able-bodied person might seek from a sex worker in an ordinary lawful transaction;[12]

    ·the SSW services are those of a sex worker and not of a sex therapist and do not require the SSW to employ any special knowledge or skill to provide VZLK with sexual release;[13]

    ·there is no evidence base in research and literature for sexual activity with a sex worker as an intervention that improves mental health;[14] and

    ·the evidence does not support a finding that engaging with a sex worker in sexual activity assists VZLK to improve, sustain or restore his independence.[15]

    [11] Exhibit 1, Document 4: Respondent’s Statement of Facts, Issues and Contentions dated 1 March 2024 at [56].

    [12] Transcript-in-confidence: Day 1, page 34 lines 1-4.

    [13] Respondent’s Closing Submissions dated 2 September 2024 at [30] and [38].

    [14] Transcript-in-confidence: Day 1, page 28 lines 32-37.

    [15] Respondent’s Closing Submissions at [36].

16. The Agency also contends that the Tribunal cannot be positively satisfied of all six ‘reasonable and necessary’ criteria set out in subsection 34(1)(a) to (f) of the NDIS Act in respect of an amount of 168 hours of support coordination per year.[16]

    [16] Document 4 at [56].

    THE NATIONAL DISABILITY INSURANCE ACT 2013 (CTH)

17. The objects of the NDIS Act are a relevant starting point in this review. They are contained in section 3 of the NDIS Act and provide as follows:

    1The objects of this Act are to:

    (a)………………………………….

    (b)provide for the National Disability Insurance Scheme in Australia; and

    (c)support the independence and social and economic participation of people with disability; and

    (d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

    (e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

    (f)………………………………….

    (g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

    (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

    ………………………………….

    In giving effect to the objects of the Act, regard is to be had to:

    (h)………………………………….

    (i)the need to ensure the financial sustainability of the National Disability Insurance Scheme.

18. The general principles which guide actions under the NDIS Act are contained in section 4 of the NDIS Act and provide as follows:

    (1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

    (2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

    ………………………………..

    (4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

    (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

    ………………………………….

    (10) People with disability should have their privacy and dignity respected.

    (11) Reasonable and necessary supports for people with disability should:

    (a) support people with disability to pursue their goals and maximise their

    independence; and

    (b) support people with disability to live independently and to be included in the community as fully participating citizens; and

    (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

    ………………………………….

    (16) Positive personal and social development of people with disability, including children and young people, is to be promoted.

    (17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:

    ……………………………………………………………………..

    (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.

    Particularly relevant to this review matter insofar as is it a request for supports are sub-sections (5), (11) and (17) above.[17]

    The principles relating to the participation of people with disability are set out in section 17A of the NDIS Act which provides as follows:

    (1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

    (2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

    (3) The National Disability Insurance Scheme is to:

    (a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

    (b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

    (c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

    [17] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [23].

19. Particularly relevant to this review matter insofar as is it a request for supports are sub-section (5), (11) and (17) above.[18]

    [18] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [23].

20. The principles relating to the participation of people with disability are set out in section 17A of the NDIS Act which provides as follows:

    (1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

    (2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

    (3) The National Disability Insurance Scheme is to:

    (a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

    (b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

    (c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

21. In National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’)[19] the Full Court of the Federal Court held that:

    ‘the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.’

    [19] At [141].

22. As a participant in the scheme section 32 of the NDIS Act requires the Agency to facilitate a plan for VZLK, specifically having regard to the principles relating to plans as specified in section 31 of the NDIS Act. On the basis of the observations in WRMF (as above) section 3, 4 and 17A of the Act are also relevant to the supports that are to be provided to VZLK as a participant in the scheme.

23. Section 33 of the NDIS Act stipulates that, as a participant in the scheme VZLK’s plan must include a ‘participant’s statement of goals and aspirations’ and also a SOPS under subsection (1) and (2) respectively.[20] The Tribunal’s jurisdiction of review is in regard to VZLK’s SOPS, which includes the ‘reasonable and necessary’ supports that will be funded or provided under the scheme and also the management of the funding for those supports.[21]

    [20] Section 33, NDIS Act.

    [21] Subsection 33(2)(b), (d) and (e) NDIS Act.

24. Subsection 34(1) of the NDIS Act identifies what constitutes a ‘reasonable and necessary support’ for the purposes of the NDIS Act, and provides as follows:

    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).

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

2. The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. It is a composite phrase and should be considered as such. In McGarrigle v National Disability Insurance Agency (‘McGarrigle’),[22] Mortimer J considered the phrase and stated as follows:

   ‘Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.’[23]

   and

   ‘Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.’[24]

   [22] [2017] FCA 308.

   [23] At [41].

   [24] At [19].

3. The phrase ‘reasonable and necessary supports’ was also considered by the Full Court in WRMF, where the following observations were made:

   ·There is no definition of 'reasonable and necessary supports';[25]

   ·It is a composite phrase. Each limb of the phrase should be given work to do. This task is not difficult, or complicated. These two particular words convey different meanings;[26]

   ·Both adjectives qualify the noun 'support', but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them;[27]

   ·The contextual use of the phrase in the NDIS Act links it to the 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;[28]

   ·Whether, in a given case, a requested support is a 'reasonable and necessary support' will generally be a question of fact, on the evidence before the decision-maker;[29]

   ·As recognised in McGarrigle, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. The exercise is highly individualised and there will be an area of 'decisional freedom'[30] for the decision-maker, about what supports fall within this description given the circumstances of a particular individual. Further, that provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under subsection 33(2), to differ;[31]

   ·The matters set out in subsection 34(1) are more than mandatory considerations. Section 34 requires that a decision-maker be positively satisfied about each matter. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material;[32] and

   ·The inquiry required of the decision-maker is therefore a targeted one, but it is not necessarily a complex one. The criteria are straightforward and pragmatic. The decision-maker's reasoning is also entitled to be of the same kind.[33]   

   [25] At [144].

   [26] At [149].

   [27] At [150].

   [28] At [151].

   [29] At [143].

   [30] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28] (French CJ).

   [31] At [152].

   [32] At [201].

   [33] At [202].

4. Subsection 34(2) of the NDIS Act provides that the Supports Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard in deciding whether the criteria under subsection 34(1) are met in respect of a requested support.

5. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports that will not be funded or provided under the scheme.

6. In McGarrigle, Mortimer J made the following observation at [43]:

   ‘The [supports rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded’. 

7. Despite the Government’s ability within the legislature to expressly exclude the funding of services involving sexual activities for participants in the scheme, no such statutory exclusion currently exists.

8. Relevant to this review are Rules 3 and 5 of the Supports Rules which provide as follows:

   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);

   ……

   (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).

   Effective and beneficial and current good practice

   3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

   (a)     published and refereed literature and any consensus of expert opinion;

   (b)     the lived experience of the participant or their carers; or

   (c)     anything the Agency has learnt through delivery of the NDIS.

   3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

   General criteria for supports 

   5.1   A support will not be provided or funded under the NDIS if:

   (a)It is likely to cause harm to the participant or pose a risk to others; or

   (b)it is not related to the participant’s disability; or

   (c)it duplicates other supports delivered under alternative funding through the NDIS; or

   (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

   5.2  The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

   (a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

   (b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

   5.3 The following supports will not be provided or funded under the NDIS:

   (a) a support the provision of which would be contrary to:

   (ii) a law of the State or Territory in which the support would be provided

   Operational Guidelines

9. Separate from legislation contained in the NDIS Act and the Support Rules the Agency itself issues ‘Operational Guidelines’ in relation to what it considers are ‘reasonable and necessary supports’ for the purposes of a participant’s plan. There is no power conferred by the NDIS Act for the Agency to make these Operational Guidelines, and they are issued in an exercise of executive power.[34] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines.

   [34] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

10. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[35] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[36] where Mortimer J held:

    ‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’

    [35] [1979] AATA 179.

    [36] [2018] FCA 1229 at [171].

11. Accordingly, unless the Agency’s Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of whether a support is reasonable and necessary for VZLK. There are no specific guidelines issued in relation to the funding of sexual services. The relevant Operational Guidelines in this review are the NDIS Reasonable and Necessary Supports Operation Guidelines.

    EVIDENCE

    Evidence about VZLK

12. VZLK provided a written statement to the Tribunal.[37] Given VZLK’s mobility and communication difficulties this document was prepared understandably with the assistance of multiple other persons.[38] VZLK’s inability to communicate orally was clearly apparent at the hearing. VZLK was however able to provide further evidence at the hearing through the use of hand signals in response to directed questioning by both Counsel. I am satisfied that every effort and consideration was made by both Counsel to assist and facilitate VZLK’s evidence at the hearing.

    [37] Exhibit 1, Document 18: Statement of VZLK dated 17 June 2023.

    [38] See paragraph [75], Reasons for Decision.

13. VZLK’s disabilities as a consequence of BC started to affect him in or about 1995. His symptoms have been progressive and deleterious.[39] VZLK’s ability to move his body is now confined to the following:

    ·Very limited movement of his right hand but no functional use;

    ·Limited movement and control over his right arm and right leg but no functional use of the full right side of his body; [40]

    ·Reduced dexterity of the four fingers and thumb in his left hand including an abducted fifth digit due to previous dislocation injury;

    ·Restricted control and movement in his left arm including a tremor-like shaking;

    ·Limited movement of his left leg; and

    ·Limited capacity to speak.[41] 

    [39] Document 16: Occupational Therapy Capacity Report of Mr James McKenzie, occupational therapist dated 15 March 2023, page 129.

    [40] Document 16, pages 135-136.

    [41] Document 2 at [10].

14. VZLK effectively has an overall weakness of both upper and lower limbs. His right sided hemiparesis is particularly significant as he is right hand dominant.[42] VZLK has used a powered wheelchair on a full-time basis since 2018 to mobilise.[43]   

    [42] Document 18 at [7] – [8].

    [43] Document 2 at [18] – [19].

15. VZLK considers himself to be a highly intelligent individual.[44] VZLK has a post-graduate level of education and is by profession a civil engineer. He worked in that capacity until about 2012 when his symptoms, which included the loss of function of his right upper limb, including his hand, worsened.[45]

    [44] Document 18 at [4].

    [45] Document 2 at [16] – [17].

16. In addition to mobility and cognitive restrictions VZLK’s disability adversely affects him in a number of other ways.

17. VZLK has weakness and reduced oral motor co-ordination.[46] He has dysphagia which affects his ability to speak and his ability to ingest food and liquids.[47]

    [46] Document 16, page 120.

    [47] Document 32, T12: Speech Pathology - Risk Related to Dysphagia and Communication Report of Ms Carolyn Ham, speech pathologist dated 17 November 2021.

18. In 2010 VZLK’s speech started to deteriorate[48] and he is now affected by significant dysarthria. In the ordinary sense of oral communication he is simply unable to be understood by most people. VZLK relies on others who are familiar with his oral communication difficulties to interpret his speech.[49] Understandably VZLK experiences frustration in relation to his communication difficulties, especially when he perceives being treated as if he has an intellectual disability, simply due to his impaired intelligibility.[50]

    [48] Document 2 at [16].

    [49] Document 32, T12.

    [50] Document 1: Applicant’s response dated 14 September 2022 at [15]; Document 32, T9 page 377.

19. Due to his disabilities VZLK requires support with all instrumental activities of daily living.[51] He is completely reliant on paid supports for his personal care, daily living activities, household duties, medication management and community access.[52] Support workers must assist VZLK with his transfers. In the past his attempts to transfer independently have resulted in VZLK falling and incurring injuries.[53]

    [51] Document 32, T10: Neurologist report of Dr Michael Walsh dated 1 November 2021, page 383.

    [52] Document 2 at [9].

    [53] Document 1 at [20].

20. VZLK has resided in Supported Disability Accommodation (‘SDA’) since July 2020.[54] VZLK receives funding for his SDA under the scheme as a part of his SOPS. In this regard VZLK has been accepted by the Agency as having ‘high physical support needs’.[55]

    [54] Document 16, page 120.

    [55] Document 32, T11, page 382.

21. VZLK has been deemed to lack capacity for financial decision-making due to cognitive decline and his financial affairs are managed by the Public Trustee.[56]

    [56] Document 7: Support Coordinator Report of Mr Tobias Turner dated 19 October 2022, page 73; Document 4 at [6].

22. In 2003 VZLK married his wife ‘W’ and had a child. VZLK moved out of the family home in 2019. VZLK maintains contact with both his child and W and they both visit him regularly.[57] W has previously provided VZLK with emotional support and other assistance.[58]

    [57] Transcript-in-confidence: Day 1, page 49 lines 14-29; Transcript-in-confidence: Day 2, page 168 lines 1-2.

    [58] Document 1 at [9]; Document 4, page 28.

23. VZLK’s extended family reside overseas. VZLK, his child and W have been able to travel together and visit the extended family overseas on two recent occasions in 2022 and 2023.[59]

    [59] Transcript-in-confidence: Day 1, page 51 line 7 to page 52 line 24.

24. In January 2024, VZLK’s health further deteriorated in the context of difficulties with ingesting food and other nutrients. VZLK was hospitalised and underwent the insertion of percutaneous endoscopic gastrostomy (PEG feeding tube).[60] This procedure involved the insertion of a feeding tube through the skin and into VZLK’s stomach. VZLK’s PEG feeding tube remains in situ.

    [60] Transcript-in-confidence: Day 1, page 44 lines 25 to 28.

25. There are certain risks associated with a PEG feeding tube and VZLK has been advised that these risks include:

    ·accidental tube dislodgement;

    ·bleeding;

    ·infection; and

    ·pain around the tube site.[61]

    [61] Transcript-in-confidence: Day 1, page 44 lines 41 to page 45 line 19.

26. VZLK is aware that particular care must be taken with his transfers in order to avoid and minimise the risk of accidental dislodgment of his PEG feeding tube.[62]

    [62] Transcript-in-confidence: Day 1, page 45 lines 16-19.

27. VZLK enjoys watching sports and attending museums and art galleries. He attends a gymnasium each week.[63] He also enjoys photography, art and travel.[64]

    [63] Transcript-in-confidence: Day 1, page 48 lines 13-34.

    [64] Document 6: Support Coordinator Report of Mr Tobias Turner, undated, page 65.

28. VZLK acknowledged at the hearing that in the past ‘some’ of his support workers have ceased their services to him due to his aggression towards them.[65] This includes the cessation of services by support workers with little or no notice.[66]

    [65] Transcript-in-confidence: Day 1, page 54 line 17-35.

    [66] Transcript-in-confidence: Day 1, page 54 lines 43-45.

29. VZLK conceded that on three occasions during 2023 one of his support workers requested a seven-day ‘pause’ from her weekly shifts.[67] During cross-examination when it was put to VZLK that this request was made in the context of allegations of physical abuse by VZLK. VZLK indicated that ‘it was her business’ and that he didn’t know why these breaks were requested.[68]

    [67] Transcript-in-confidence: Day 1, page 57 lines 20-42.

    [68] Transcript-in-confidence: Day 1, page 57 line 36 to page 58 line 8

30. VZLK has not attended with a behavioural support practitioner and does not have a behavioural support plan.[69] VZLK last engaged with Mr Robert Morgan, a psychologist specialising in behaviour support in April 2021.[70]

    [69] Transcript-in-confidence: Day 1, page 27 lines 34-36.

    [70] Document 14: Report of Mr Robert Morgan dated 24 January 2023, page 121.

31. VZLK currently receives treatment from Dr Kim Hicks, psychiatrist. He attends with Dr Hicks generally every three to four months. Dr Hicks prescribes medication for VZLK’s anxiety and depression.[71] VZLK last saw Dr Hicks two weeks prior to the hearing. At that time she increased the dosage of one his medications.

    [71] Transcript-in-confidence: Day 1, page 62 lines 1-46.

32. Prior to the manifestation of his symptoms VZLK enjoyed a healthy adult sex life with various partners.[72] Historically VZLK has also attended strip clubs. He last attended a strip club sometime in 2023.[73] He stated that he enjoys seeing attractive woman, naked and partially naked, and being able to touch their bodies.[74]

    [72] Document 2 at [13].

    [73] Transcript-in-confidence: Day 1, page 48 line 36 to page 49 line 13.

    [74] Document 18 at [30].

33. Throughout his life including before and during his marriage VZLK has also engaged the services of sex workers, which he has funded personally.[75]

    [75] Document 18 at [21].

34. Around 2015, due to the increasing severity of his symptoms VZLK’s ability to self-stimulate independently became significantly limited.[76] VZLK nowadays has no functional use of his dominant right hand and lacks sufficient coordination and dexterity of his left hand for effective sexual self-stimulation.[77]

    [76] Document 18 at [13].

    [77] Document 28: Report Dr Armin Ariana, Experts Direct Pty Ltd, dated 26 September 2023 at [7.2] and [7.8].

35. VZLK stated that, by 2017 he was ‘generally’ unable to engage in or enjoy ‘sex of any kind’ with his former wife,[78] however agreed that he could have engaged in sexual activities around this time had he chosen to do so.[79]

    [78] Transcript-in-confidence: Day 1, page 77 lines 9-34.

    [79] Transcript-in-confidence: Day 1, page 77 lines 38-43.

36. VZLK experiences frustration as a result of ‘not being able to touch a woman in the ways I used to.’[80] It is the desire to touch a woman and be touched that has led VZLK to again pursue the services of sex workers. He stated that he wants to explore what sexual activities his body may be capable of in the context of his disability, which includes sexual pleasure and release.[81]

    [80] Document 18 at [22].

    [81] Document 18 at [27], [40] and [42].

1. VZLK therefore wishes to resume the sexual aspect of his life. He considers that a sex worker will assist him to relearn how to function sexually[82] and that the resumption of this aspect of his life will improve the quality of his life.[83]

   [82] Document 18 at [42].

   [83] Document 2 at [11].

2. VZLK stated:

   ‘I know that my body is restricting me but my mind is still very much the same as it was. It is an awful feeling to know that you are not able to function like a man and the sex workers don’t make me feel any judgement.

   Being with a sex worker helps to elevate my mood immensely. I forget, albeit for a short period, that I have the disabilities that I do.’[84] 

   [84] Document 2 at [34].

3. Since October 2022 VZLK has received the services of two sex workers, ‘ZM’ and ‘AB’ on a total of ten occasions. Nine of these services have been provided by AB.[85] These services were arranged for VZLK by his support coordinator and his support worker. All of these services have been paid for out of his NDIS funding.[86] VZLK is unclear in his recollection of the fee paid for each of these services.[87]

   [85] Document 20: Statement of AB dated 21 May 2024, page 218.

   [86] Transcript-in-confidence: Day 1, page 70 lines 15-19; Day 2: page 171 lines 27-34.

   [87] Transcript-in-confidence: Day 1, page 67 line 38 to page 69 line 30.

4. VZLK’s evidence was that the use of sex workers has provided him with a means of ‘usefully’ being able to reach sexual release, ‘to the extent to which he can’.[88] Relevant to his capacity for sexual activities VZLK described the effects of his disability as follows:

   ·‘It was and is very frustrating and emasculating to not be able to touch a woman in the ways I used to’;

   ·‘I am very conscious that I am no longer able to pleasure a woman in the way I used to do nor enjoy my own body with a woman. This causes me a lot of anxiety and upsets me’;

   ·‘I still long for the touch of a woman and to be able to touch a woman’;

   ·‘The ability to bring a woman to orgasm I know is beyond me, but this does not diminish my desire to be intimate to the extent I can’;

   ·‘I have craved being able to touch a woman and to be touched and this has led me to pursue sessions with a sex worker; and

   ·‘I feel I have to abandon my dignity as I need to rely on support workers to prepare me for these appointments with a sex worker.’[89]

   [88] Document 2 at [24].

   [89] Document 18 at [22] – [28].

5. Further and in relation to these services, VZLK explained that he now enjoys having appointments with a sex worker and gave reasons as follows:

   ·‘I, like many other men, still thoroughly enjoy looking at an attractive naked woman in the flesh’;

   ·‘I like watching them masturbate and pleasure themselves and listening to them do this’;

   ·‘I enjoy them touching me and exploring my body such as performing oral sex on me. I like watching them do this’; and

   ·‘I am able to feel like we are connecting intimately because she is talking to me as a sexual being.’[90]

   [90] Document 18 at [29].

6. VZLK described his request for funding to engage with sex workers as multifactorial and including the following services:

   (a)Intimacy, affection and physical human contact.[91] In this regard VZLK enjoys being kissed intimately, spooning, touching the body of the sex worker and being himself touched by the sex worker.[92] VZLK’s statement provided the following further examples:

   [91] Transcript-in-confidence: Day 1, page 16 line 19; page 86 lines 1-13.

   [92] Document 8; Document 20.

   o‘the feeling of a naked woman being next to my naked body’;

   o‘having a woman intimately touch my body, penis and testicles’; and

   o‘having them perform oral sex on me and use their hands on my penis and testicles’.

   (b)The visual aspect of sexual activity. Some of these aspects include the following:

   olooking at attractive naked women;

   owatching the sex worker undress, including a strip tease; and

   owatching the sex worker self-pleasure with sex toys and listening to this;[93] and

   (c)Thirdly, his own personal sexual release.[94]

   [93] Document 18 at [35]; Document 8, page 87.

   [94] Transcript-in-confidence: Day 1, page 86 lines 25-30.

7. VZLK considers that, by addressing his sexual needs and emotional needs, the ‘sexual services’ of a sex worker will improve his mood regulation and mental health, reduce his aggression and frustration and result in an overall improvement in his well-being. A reduction in his aggression will thereby assist him with all social activities, including improved interactions with his caregivers.[95]

   [95] Transcript-in-confidence: Day 1, page 17 lines 20-35; Document 18 at [34].

8. VLZK also considers that these sexual services will also provide him with a sense of ‘normality’. Engagement with a sex worker reminds him that he is a ‘man’ and increases his self-esteem which reduces his isolation and improves his social participation in day-to-day life.[96]

   [96] Transcript-in-confidence: Day 1, page 16 lines 19-27.

9. VZLK has received information relating to the risks of Autonomic Dysreflexia (‘AD’), a potentially life-threatening condition that can occur in individuals with spinal cord injuries and conditions such as his, as a result of sexual activity. He is unable however to recall who provided him with this information or when this occurred.[97]

   [97] Transcript-in-confidence: Day 1, page 43 lines 6-24.

10. VZLK confirmed that his sessions with AB, which are nine in total have involved a degree of consistency and that they ‘stick to a routine’.[98] His evidence was that if he were to receive the services of a different sex worker he would like to ‘try new things’.[99]

    [98] Transcript-in-confidence: Day 1, page 74 lines 4-19.

    [99] Transcript-in-confidence: Day 1, page 74 line 25.

11. VZLK acknowledged that the improvement to his mood as a result of each session with a sex worker occurs ‘on the day’ in which the service is provided.[100] In cross-examination VZLK was unsure if this elevation in his mood was ‘temporary’ however did concede that he could demonstrate frustration and anger the next day after the session with the sex worker if something occurred to upset him.[101]

    [100] Transcript-in-confidence: Day 1, page 79 lines 12-18.

    [101] Transcript-in-confidence: Day 1, page 79 lines 20-30.

12. VZLK acknowledged also that Mr Turner has provided significant assistance in relation to these Tribunal proceedings and that funding for Mr Turner’s assistance has been paid out of his support coordination funding. This assistance includes the preparation of VZLK’s statement, a statement on behalf of AB and a number of other documents filed with the Tribunal.[102]

    [102] Transcript-in-confidence: Day 1, page 53 line 24 to page 54 line 15.

    Evidence of Mr Tobias Turner

13. Mr Turner is a co-director together with Ms Rhonda Kelly of MyLife Mentoring. MyLife Mentoring provides support coordination for VZLK as a participant in the scheme. Mr Turner has been working with VZLK since June 2021.[103]

    [103] Transcript-in-confidence: Day 1, page 142 lines 23-24.

14. Mr Turner provided several statements and reports to the Tribunal.[104] He also gave oral evidence at the hearing.[105] I am satisfied that Mr Turner’s evidence was honest and truthful and in accordance with his obligations to the Tribunal.

    [104] Document 6; Document 7; Document 8; Support coordinator feedback report – meeting with ZM of Mr Tobias Turner and Ms Rhonda Kelly dated 24 October 2022; Document 11: Support coordinator report – Update sex worker of Mr Turner dated 13 December 2022;  Document 12: Support coordinator report of Mr Turner - Update other service providers dated 13 December 2022; Document 17: Update to support coordinator hours and usage report of Mr Turner dated 13 March 2023 Document 19; Statement of Mr Turner dated 17 June 2023; Document 21: Statement of Mr Turner dated 16 February 2024.

    [105] Hearing days 6 June, 18 July, 19 July and 7 August 2024.

15. Mr Turner confirmed that preparation of VZLK’s statement for the Tribunal involved the combined efforts of himself, VZLK, Ms Kelly, W and one of VZLK’s support workers.[106] Mr Turner confirmed that he also assisted AB in the preparation of her first statement.[107]

    [106] Transcript-in-confidence: Day 2, page 144 line 20 to page 145 line 15; page 161 lines 38-44.

    [107] Transcript-in-confidence: Day 2, page 143 line 10-11

16. Mr Turner’s evidence was that the time taken by him in respect of matters relating to VZLK’s application to the Tribunal was in in the vicinity of eight hours. In this regard, Mr Turner stated that he had invoiced the Agency for 8 hours of his services between 13 December 2022 and 17 January 2023 which related to VZLK’s application to the Tribunal.[108]

    [108] Transcript-in-confidence: Day 2, page 154 lines 24-28.

17. Mr Turner explained that VZLK had ‘almost non-existent intelligibility’.[109] He stated, ‘VZLK has extremely limited communicative function and significantly impaired intelligibility’ and that ‘VZLK is difficult to understand when face-to-face and unable to be understood over the phone’.[110]

    [109] Document 6, page 71.

    [110] Document 6, page 72; page 81.

18. Mr Turner described the impacts of VZLK’s communication difficulties which included ‘relational impacts’ due to increased bouts of anger and rage which are directly related to his communication difficulties. Mr Turner stated that VZLK fatigues ‘rapidly’ when trying to talk and that this increases his frustration as he must repeat himself to be understood.[111] Notwithstanding, he explained that VZLK was resistant to using communication aids such as letterboards.[112]

    [111] Transcript-in-confidence: Day 2, page 161 lines 33-36; Document 6, page 83.

    [112] Document 6, page 81; Document 21 at [6].

19. Mr Turner confirmed that he made the initial enquiries and arrangements in respect of the services of a sex worker for VZLK. This process involved engaging with a number of sex workers who provided services to disabled clients to explain VZLK’s individual circumstances and ascertaining if they were comfortable in providing services to VZLK. As a result of this process Mr Turner identified two sex workers ZM and AB.[113]

    [113] Transcript-in-confidence: Day 2, page 137 lines 1-19.

20. Mr Turner had preliminary discussions with both sex workers. These discussions were in relation to VZLK’s ‘specific request’ and their respective service fees.[114] In regard to risks that may be involved Mr Turner identified to ZM that it would be beneficial to discuss with VZLK’s support workers his manual handling and transfers. Mr Turner stated, ‘we just identified that there were – there was going to need to be a bit of assistance provided to him if he was going to be transferring from a chair into the bed’.[115]

    [114] Transcript-in-confidence: Day 2, page 138 lines 5-9.

    [115] Transcript-in-confidence: Day 2, page 201 lines 23-25.

21. Mr Turner was aware that since May 2023 VZLK’s SOPS has included funding for psychology services. Mr Turner stated that this funding had not been arranged through VZLK’s support coordination services and made the point that VZLK is ‘more than able to organise his own supports’.[116] He is not aware of VZLK accessing any psychology services since ceasing his engagement with Mr Morgan due to communication issues.

    [116] Transcript-in-confidence: Day 2, page 149 lines 28-37.

22. In his report dated 6 December 2021 Mr Turner stated:

    ‘VZLK’s inability to communicate has caused him to become frustrated and angry, and he has a history of behavioural disturbances, as well as physical and verbal aggression towards carers, and issues with impulsive/unsafe behaviours. In order for VZLK’s voice to be heard, his communication needs must be supported and it is essential he have face to face appointments.’[117]

    [117] Document 6, page 71.

23. Mr Turner also referred in this report to VZLK’s ‘history of behavioural disturbances, as well as physical and verbal aggression towards carers, and issues with impulsive/unsafe behaviours’.

24. In oral evidence Mr Turner referred to the following matters:

    ·He was aware of a report by a previous support worker of multiple incidents of VZLK being verbally aggressive in public and that these incidents included occasions when the police had been involved;[118]

    [118] Document 6, page 68; Transcript-in-confidence: Day 2, page 155 line 36 to page 156 line 22.

    ·He has witnessed VZLK’s anger and frustration which he considers is due to his primary disability of BC and his almost unintelligible communication;[119]

    [119] Transcript-in-confidence: Day 3, page 189 lines 17-36; Document 6, page 71.

    ·That VZLK’s anger and frustration increased when he was trying to communicate something of urgency;[120]

    [120] Transcript-in-confidence: Day 3, page 189 lines 43- 45.

    ·In the context of VZLK’s frustration associated with the difficulty in communicating he has personally observed that VZLK’s anger can ‘rapidly escalate’.[121]

    [121] Transcript-in-confidence: Day 3, page 187 lines 45-46

    ·That experience and skill is required to de-escalate VZLK;[122]

    [122] Transcript-in-confidence: Day 3, page 188 lines 1- 3.

    ·That VZLK had been verbally abusive to support workers whilst they were attempting to help him use public transport;[123]

    ·He has received reports from support workers of VZLK’s ‘rapid escalation into anger and rage’;[124]

    ·That one of the reasons for the deterioration of VZLK’s relationships with his supports workers has been on account of ‘anger and rage’ directed at them by VZLK;[125]

    ·In 2023, a former support worker service provider gave notice of immediate service termination following allegations of physical abuse towards support workers and one allegation of property damage.[126] Mr Turner stated that the allegations by the former support worker service were in relation to multiple instances of physical abuse, over a number of months, that related to VZLK allegedly ‘striking out or attempting to strike out at support workers’. Mr Turner was unable to recall any specific ‘number’ of instances however was able to confirm that there were allegations in relation to ‘multiple’ instances;[127]

    ·That VZLK was alleged to have intentionally driven his wheelchair into a former support worker’s motor vehicle causing damage to a panel of the motor vehicle;[128] In relation to the veracity of these allegations Mr Turner did not personally take any steps to verify these allegations;[129]

    ·That during the course of 2023 Mr Turner had been contacted on several occasions by support workers during their shift ‘in distress’ due to the behaviours of VZLK;[130]

    ·An incident in March 2023 during a scheduled day trip to Byron Bay with a support worker during which VZLK became verbally and physically aggressive whilst inside a motor vehicle in the context of wanting to stay overnight at that location;[131]

    ·A request on short notice by a support worker, on three occasions, for a break from caring for VZLK in the context of physical abuse towards her by VZLK;[132]

    ·The resignation of seven of VZLK’s support workers between February 2023 and February 2024 with little or no notice;[133] and

    ·An incident where a support worker was travelling in a taxi with VZLK to an appointment. VZLK became escalated when the support worker was unable to understand VZLK’s communications. VZLK thereafter requested the taxi driver to ‘pull over to basically kick the support worker out of the cab’.[134]

    [123] Transcript-in-confidence: Day 3, page 189 lines 25-32.

    [124] Document 6, page 81; Transcript-in-confidence: Day 2, page 157 lines 35-40; page 158 line 5-6

    [125] Transcript-in-confidence: Day 2, page 157 line 45 to page 158 line 2.

    [126] Transcript-in-confidence: Day 2, page 158 lines 10-20.

    [127] Transcript-in-confidence: Day 2, page 159 lines 23-32.

    [128] Transcript-in-confidence: Day 2, page 158 lines 34-37.

    [129] Transcript-in-confidence: Day 2, page 159 lines 1-4.

    [130] Transcript-in-confidence: Day 2, page 159 lines 28-33.

    [131] Document 21, pages 160-161.

    [132] Transcript-in-confidence: Day 2, page 160 lines 4-13.

    [133] Document 21 at [28].

    [134] Transcript-in-confidence: Day 3, page 189 lines 28-32.

25. Relevantly, Mr Turner confirmed that the list of matters he had referred to in his evidence that relate to VZLK’s concerning behaviours was ‘definitely not an exhaustive list’.[135]

    [135] Transcript-in-confidence: Day 3, page 189 lines 13-15.

26. In a question by the Tribunal Mr Turner confirmed that VZLK’s behaviours of concern continue. These behaviours of concern are mostly in relation to verbal aggression and escalation by VZLK towards his support workers due to ‘something that is happening to him at the time’. These behaviours occur in the home, in the community and whilst with family. In 2023, a process of incident reporting was commenced by VZLK’s support coordinators in relation to his behaviours of concern. This process of incident reporting requires completion of a ‘form’. The most recent reported incident occurred a fortnight prior to completion of the hearing of this review.[136]

    [136] Transcript-in-confidence: Day 5, page 25 line 6 to page 26 line 11.

27. Mr Turner contended that the current levels of funding for support coordination are insufficient to manage VZLK support needs. In doing so he referred to various matters requiring the services of support coordinators since the commencement by MyLife Mentoring of working with VZLK. Mr Turner stated, in addition to assistance with preparation for the Tribunal proceedings[137] that the following support had also been provided:[138]

    [137] Transcript-in-confidence: Day 2, page 142 lines 43-45; page 154 lines 24-28.

    [138] Document 7, pages 85-86.

    ·assistance with the resolution of a body corporate dispute involving VZLK;

    ·searching for alternative accommodations for VZLK at various times;

    ·arranging independent support workers;

    ·managing the attrition of support workers;

    ·arranging holidays for VZLK;

    ·assistance during multiple hospitalisations;

    ·assistance with accessing a sex worker;

    ·engaging with the Public Trustee at VZLK’s request;

    ·managing and dealing with support worker issues in respect of VLKZ; and

    ·managing and dealing with VZLK’s issues in respect of support workers.

    Evidence of Dr Armin Ariana

28. Dr Ariana is a medical practitioner and clinical sexologist. He specialises in psychosocial matters, sexual impairments and psychosexual dysfunction related to acquired brain injuries. He has over 20 years’ experience which includes as a sex therapist. Amongst his other credentials Dr Ariana is the President of the Society of Australian Sexologists. Dr Ariana also has a Doctor of Medicine, a PhD in cancer genetics, a Masters of sexual health, a degree in counselling and a graduate diploma of psychology.

29. Dr Ariana provided two reports to the Tribunal.[139] He also gave oral evidence at the hearing. At the hearing Dr Ariana confirmed that his professional opinion was given only in his capacity as a sexologist and not as a doctor.[140] I am satisfied that Dr Ariana’s evidence was honest and truthful and in accordance with his obligations to the Tribunal.

    [139] Document 28: Report of Dr Armin Ariana dated 26 September 2023; Document 29: Supplementary report of Dr Armin Ariana dated 6 December 2023.

    [140] Transcript-in-confidence: Day 5, page 48 line 3; lines 41-42.

30. Dr Ariana’s reports were based on his review of documentation relating to VZLK[141] and also his face-to-face assessment of VZLK on 28 August 2023 for approximately one hour. The purpose of Dr Ariana’s assessment was stated as to ‘explore VZLK’s capacity for self-stimulation, the potential use of assistive technology, his ability to position himself during sexual activity, the impact of his functional impairments on non-commercial sexual activity and the risks and benefits associated with engaging in sexual activity with a sex worker’.[142]

    [141] Document 28 at [6]: Documentation Provided by the Instructing Solicitors.

    [142] Document 28 at [8.1].

1. In his first report Dr Ariana stated that VZLK’s ‘near-quadriplegic condition’ severely limited his ability to engage in ‘conventional sexual activities’. Dr Ariana explained that VZLK’s capacity to position himself and re-position himself during sexual activity with another person including a sex worker was likely to be significantly limited due to his partial quadriplegic condition. Further, that VZLK’s ability to self-stimulate independently was significantly limited due to extensive neurological deficits resulting from his BC.[143]

   [143] Document 28 at [3.4]; [7.2] and [7.17].

2. Dr Ariana strongly recommended a comprehensive assessment of VZLK’s remaining sensory abilities in order to identify any specific areas of VZLK’s body where he may have greater sensory perception and potential for self-stimulation.[144]

   [144] Document 28 at [7.3].

3. Dr Ariana explained that, depending upon VZLK’s level of touch sensation, there may be adaptive devices and assistive technologies available to VZLK that can enhance his ability to self-stimulate. Dr Ariana stated, ‘Ultimately, the capacity for VZLK to self-stimulate independently is extensively reduced, and it will depend on the unique combination of his residual abilities, any available assistive technology, and his personal preferences and desires’.[145]

   [145] Document 28 at [7.8].

4. In further considering VZLK’s capacity to self-stimulate with assistive technology (‘AT’) Dr Ariana identified the following issues as relevant:

   ·The specific nature of VZLK’s condition;

   ·That any AT should be tailored to VZLK’s needs;

   ·The importance in the choice of AT;

   ·That any AT chosen ‘should align with VZLK’s sensory abilities and the extent of his remaining dexterity’ and ‘be designed for ease of operations, with accessible buttons, switches or remote controls that can be activated with minimal effort’;

   ·That VZLK will require assistance to access any AT. This assistance would include initial setup, charging the device, positioning it for use, and ensuring the AT is properly cleaned and maintained. Dr Ariana stated that ‘Caregivers or support personnel can play a role in assisting in these tasks’;

   ·Dr Ariana also stated ‘In summary, I believe VZLK’s capacity to self-stimulate with assistive technology independently depends on the design of the technology, his specific sensory abilities, and his level of motor function. Even if such a device is designed for him, he will require assistance with set up or operation’.[146]

   [146] Document 28 at [7.9] - [7.16]

5. Dr Ariana considered that engagement with a sex worker could contribute to several potential improvements in VZLK’s functional capacity including emotional well-being, reduced aggression and enhanced relationship dynamics.[147]

   [147] Document 29 at [3.6].

6. In regard to the durability of these improvements Dr Ariana emphasised that engagement with a sex worker for the provision of sexual services would be a valuable addition as part of a ‘comprehensive, multidisciplinary care plan’.[148] Dr Ariana stated ‘While other interventions are crucial, addressing VZLK’s emotional and sexual needs through the assistance of a sex worker can contribute significantly to his overall well-being. The combination of various supports including the engagement of a sex worker aims to create a holistic approach that recognises and respects VZLK’s autonomy and individuality’.[149]

   [148] Document 29 at [3.9(c)].

   [149] Document 29 at [3.14].

7. As part of a ‘comprehensive approach’ using a multidisciplinary team that addressed VZLK’s emotional, physiological and social well-being Dr Ariana referred to the following additional treatments, therapies and interventions which he considered may be beneficial for VZLK:

   ·psychotherapy/counselling including cognitive behavioural therapy;

   ·family therapy;

   ·engagement with support groups for individuals with disabilities;

   ·mindfulness and relaxation techniques;

   ·anger management;

   ·physical rehabilitation and occupational therapy;

   ·medication management;

   ·social support

   ·accessible and assistive technology; and

   ·recreational and creative therapies.[150]

   [150] Document 28 at [7.88].

8. Dr Ariana anticipated the following improvements and potential changes for VZLK as a result of engaging with a sex worker:

   ·improved emotional well-being;

   ·an alleviation of sexual frustration;

   ·enhanced sense of connection and companionship; and

   ·a potential and temporary reduction in his agitation and frustration leading to improved interaction with caregivers and support workers.[151]

   [151] Document 29 at [3.17].

9. Dr Ariana considered the potential physical risks of harm to a sex worker during sexual activity and stated that there are ‘a few concerns’ regarding VZLK’s potential for aggressive or unpredictable behaviour including ‘lashing out’ at support workers.[152]

   [152] Document 28 at [7.60] - [7.62].

10. Dr Ariana stated it was crucial that the risks of engaging in sexual activity with a sex worker be considered and assessed and that appropriate precautions be taken to ensure VZLK’s safety and well-being.[153] Dr Ariana identified other risks and considerations associated with using a sex worker including emotional and psychological challenges and recommended that VZLK have access to professional guidance in the form of psychological support and counselling.[154]

    [153] Document 28 at [7.26].

    [154] Document 28 at [1.3], [7.26], [7.37], [7.39], [7.57] and [7.67].

11. Dr Ariana stated that research on the direct and comprehensive impact of engaging in sexual activity with a sex worker on an individual's mood and mental health is limited and often controversial. The available literature predominantly focuses on specific aspects such as sexual satisfaction, relationship dynamics and emotional well-being.

12. In acknowledging however the likelihood of negative impacts of engagement with a sex worker Dr Ariana stated, ‘It is my opinion that the benefits of engaging a sex worker for VZLK outweigh any potential negative impacts.’[155]

    [155] Document 28 at [3.24].

13. In his second report Dr Ariana provided the following conclusion:

    ‘In conclusion I strongly support the inclusion of sex work as a potential element in VZLK’s mental health care plan, emphasising the importance’s of addressing his unique emotional and sexual needs in a safe and consensual manner. This approach is valuable within a broader, multidisciplinary strategy that integrates traditional mental health treatments while respecting VZLK’s autonomy and well-being.

    Considering his condition and communication challenges, the recommendation underscores the practicality and therapeutic potential of engaging a sex worker to enhance emotional well-being and reduce aggression and contribute to an improved quality of life. I also acknowledge the need for ongoing psychological support, counselling and regular assessments to ensure a holistic and personalised approach to VZLK’s care.’[156]

    [156] Document 29 at [4].

14. In his oral evidence Dr Ariana confirmed that his assessment did not include a ‘physical examination’ of VZLK, an assessment of whether VZLK was able to masturbate or the identification of any specific assistive technology that VZLK may be able to use. Dr Ariana did however confirm that VZLK would need assistance to masturbate or use an assistive aid.[157]

    [157] Transcript-in-confidence: Day 5, page 43 lines 24-25; page 44 lines 4-15.

15. When questioned directly by the Tribunal Dr Ariana considered that the benefits of fortnightly access to the services of a sex worker for VZLK and VZLK’s behaviours were ‘two different things’.[158] Dr Ariana stated:

    ‘I think that the whole lash out activity is not just because he's not having sex or he's not having enough sex. It's more about he's not capable of moving properly.

    
    

    He's not capable of talking appropriately, he's not able to swallow and sometimes things stuck in there and he needs help for that. And the whole chain of events that's happening in his life make him more agitated, more irritated. And I think that's more related to the behaviour that he, we are observing from him and reported by their social workers or supporters.’[159]

    [158] Transcript-in-confidence: Day 5, page 50 lines 1-4.

    [159] Transcript-in-confidence: Day 5, page 50 lines 10-17.

16. In the hearing Dr Ariana was referred to the annexure to his report titled: ‘PleasureABLE - Sexual Device Manual for Persons with Disabilities’ (‘the manual’) which included some suggestions of hands-free devices. Dr Ariana stated that he would recommend these handsfree devices be trialled by VZLK ‘if he’s interested’.[160]

    [160] Transcript-in-confidence: Day 5, page 31 lines 30-32.

17. Dr Ariana further confirmed to the Tribunal that there existed a number of hands-free assistive technologies that VZLK would be able to use to achieve sexual release.[161] The transcript records the following exchange:

    [161] Transcript-in-confidence: Day 5, page 52 lines 1-6.

    Senior Member: I know you haven’t done an assessment of the available equipment and whether he’s able or not to use it…do you have any view on whether or not there might be equipment that he could use to achieve sexual release which is available in Australia?

    Dr Ariana:  Yes, there are.

    Senior Member: There are. There is. You're certain about that?

    Dr Ariana: Yes.

    Senior member:  Who would assess that?

    Dr Ariana:  A sexologist…

    Senior Member: A sexologist would assess that?

    Dr Ariana:  Yes.

    Senior Member: Yes?

    Dr Ariana: Yes, there are people in the sex toys industry who might be able to help even better because they know the gadget and they know what they are designed for.[162]

    [162] Transcript-in-confidence: Day 5, page 52 lines 1-14.

18. Dr Ariana confirmed that, in the context of VZLK’s mobility restrictions particularly in relation to his upper limbs it is unlikely VZLK could operate assistive technology without assistance. This assistance did not necessarily have to be provided by a sex worker and could be provided by another person, including a support worker who was willing and able to do so.

19. Dr Ariana further explained to the Tribunal the following:

    Senior Member: And if he was able to use a device presumably, and there was a system in place, he could use it more than fortnightly.

    Dr Ariana: Yes, he can use it every day if he wants to.[163]

    [163] Transcript-in-confidence: Day 5, page 52 lines 39-41.

20. Dr Ariana stated that autonomic dysreflexia was in his view ‘the biggest concern’ for VZLK. He explained that AD was a life-threatening condition occurring in persons affected by spinal injury, conditions such as multiple sclerosis and brain injury conditions such as VZLK’s.[164] He advised a person may notice their heart ‘speeding up’ and would need to understand that ‘they need to stop the excitement of the thing’.[165] Dr Ariana recommended a review of VZLK by a neurologist to assess AD as a potential risk for him and also to provide education to both VZLK and any sex worker around the signs and symptoms of AD.[166]

    [164] Transcript-in-confidence: Day 5, page 33 line 39 to page 34 line 10.

    [165] Transcript-in-confidence: Day 5, page 33 lines 42-45.

    [166] Transcript-in-confidence: Day 5, page 34 lines 25-39; page 48 lines 5-8.

21. Dr Ariana also recommended a ‘holistic’ approach to VZLK’s care model. He explained that with the provision of access to a sex worker VZLK would ‘definitely need’ support provided through a psychologist or sex therapist.[167] Dr Ariana did not consider that the three sessions of engagement with Mr Morgan in 2021 was a sufficient level of engagement for VZLK insofar as psychosocial support was concerned.[168]

    [167] Transcript-in-confidence: Day 5, page 51 lines 8-9.

    [168] Transcript-in-confidence: Day 5, page 37 line 8 to page 38 line 4.

22. In relation to VZLK’s aggression and other behaviours of concern Dr Ariana agreed that current good practice included engagement with a behavioural support practitioner and the development of a behavioural support plan.[169]

    [169] Transcript-in-confidence: Day 5, page 38 lines 38-43.

    Evidence of Ms Sherryn West

23. Ms West provides plan management services to VZLK through various corporate entities as registered providers. She has been providing these services to VZLK since March 2020.[170] Ms West provided a statement to the Tribunal and also gave oral evidence at the hearing.

    [170] Exhibit 4: Statement of Ms Sherryn West dated 6 August 2024 at [1] - [2].

24. In her statement Ms West described the support that she provides to VZLK in her role as follows:

    ·engaging with VZLK and his NDIS providers and support coordinators to process claims from the relevant NDIS plan;

    ·providing monthly statements; and

    ·working within relevant budget allocations in VZLK’s NDIS plans.[171]

    [171] Exhibit 4 at [6].

25. Ms West further stated that all of VZLK’s claims have been successfully submitted and met the requirements of the NDIS pricing arrangements and also that, during this period ‘there have been no concerns or issues raised on claims processed’.

26. In her oral evidence Ms West explained that it is not always the case that a copy of a participant’s plan is provided to her in her capacity as the plan manager.[172] She was unable to recall whether she has ever received a copy of a plan for VZLK or made enquiries for information in relation to details of the funding included in VZLK’s plans.[173]

    [172] Transcript-in-confidence: Day 5, page 6 lines 20-24.

    [173] Transcript-in-confidence: Day 5, page 7 lines 24-26; page 10 lines 13-15.

27. Ms West explained that it is often that all she will have available to her is the service agreement between VZLK and a service provider.[174] Ms West explained that the details which are provided to her in a service agreement are limited to the participant’s name and NDIS number and the dates of their current plan. This information is used to create an electronic ‘service booking’. A service booking enables the plan manager to connect with the participant’s plan and draw down on funds upon receipt of an invoice from a provider.[175] In relation to the details of funding used, Ms West stated that service booking identifies the four support budgets of a plan and that she manages funding ‘on the basis of how much is in each of the different categories and monitor the spending that way. So there’s a monthly report that’s provided, the system generates alerts when the participants perhaps is over 75 per cent of their funds, and work with the support coordinators as well.’[176]

    [174] Transcript-in-confidence: Day 5, page 4 lines 31-47.

    [175] Transcript-in-confidence: Day 5, page 6 lines 32-33.

    [176] Transcript-in-confidence: Day 5, page 7 lines 31-35.

28. Ms West was challenged in relation to her understanding of her responsibilities as plan manager. In particular reference to the NDIS Guide to Plan Management[177] which identifies both the service establishment and ongoing service responsibilities for plan management providers. Relevantly these responsibilities include the following:

    Ensuring funds are being spent in accordance with the plan and in line with expected NDIS plan spend.

    [177] Dated September 2020, Part 4; Transcript-in-confidence: Day 5, page 10 lines 30-47.

29. Ms West was also specifically referred to line item 01_046_0116_1_1 as the line item used by her to process each of the payments for sexual services provided to VZLK (‘the line item’).[178] Under the NDIS Pricing Arrangements and Price Limits 2021-2022[179] utilisation of the line item is subject to a quotation and should only be used if the support is a stated item in a participant’s plan.

    [178] Transcript-in-confidence: Day 5, page 11 lines 18-21.

    [179] Page 51.

30. Ms West confirmed that to the best of her knowledge the line item has never been included as a stated item in any of VZLK’s plans since 2022. Further, that as VZLK’s plan manager, no relevant quotation was obtained on behalf of VZLK, submitted to the agency or approved by the agency in relation to the line item.[180] Ms West also stated ‘we are just processing invoices’.[181]

    [180] Transcript-in-confidence: Day 5, page 11 lines 7-43

    [181] Transcript-in-confidence: Day 5, page 17 lines 35-36.

31. Ms West advised that in March 2024 her company brought in a new software system which ‘should’ have resulted in a payment being rejected when using this line item in the absence of a quotation.[182] Ms West was effectively unable to provide any explanation as to how this line item had been approved, including as recently as May 2024.

    [182] Transcript-in-confidence: Day 5, page 15 line 42 to page 16 line 16.

32. Ms West explained that she did not personally scrutinise invoices for participants. Rather that the scrutiny of any invoice rests with the software used to process the invoice.[183] Ms West stated that ‘we’ll just do a quick review of the invoice, hit submit, and process the claim… it would only reject if the relevant information isn’t on the invoice.’[184]

    [183] Transcript-in-confidence: Day 5, page 16 lines 38-4; page 17 lines 22-26.

    [184] Transcript-in-confidence: Day 5, page 7 lines 4-16.

    Evidence of AB

33. AB is a professional sex worker and specialises in working with people with disabilities.[185] She has worked in that capacity since February 2021. Prior to this role AB worked for nearly three years as a disability support worker for participants in the scheme.[186] AB has in the past completed a training program to become a disability support worker. She explained this involved a part-time course over a period of approximately three months.[187]

    [185] Transcript-in-confidence: Day 2, page 127 lines 31-43.

    [186] Transcript-in-confidence: Day 2, page 127 lines 8-29.

    [187] Transcript-in-confidence: Day 2, page 127 lines 16-21

34. AB provided two statements to the Tribunal[188] and also gave oral evidence. I am satisfied that AB’s evidence was honest, forthcoming and genuine and in accordance with her obligations to the Tribunal.

    [188] Document 20; Document 25: Statement of AB dated 21 May 2024.

35. AB stated that whilst working as a disability support worker she identified a ‘very niche market’ for sex workers who were willing to provide services for people with disabilities.[189]

    [189] Transcript-in-confidence: Day 2, page 128 lines 7-14; page 130 lines 30-31.

36. AB explained that she provided ‘sexual services, sexual counselling, companionship and some virtual services’. AB provides these services for people both with and without disabilities and stated that there was ‘not much’ difference in the provision of sexual services to an able-bodied client as opposed to a client with a disability^.[190]

    [190] Transcript-in-confidence: Day 2, page 128 lines 29-32.

37. In addition to AB’s experience as a disability support worker and a sex worker providing services to people with disabilities AB has also done a course through ‘Touching Base’ (the ‘Touching Base course’).

38. The Touching Base course provides education for sex workers who are working with people with disabilities. AB explained that this course was conducted in two sessions, each of between two and three hours. The course included education in the following areas:

    ·the role of a sex worker;

    ·consent;

    ·communication;

    ·peer skill sharing;

    ·setting up the appointment;

    ·what to ask during a booking enquiry;

    ·privacy and confidentiality; and

    ·setting boundaries.[191]

    [191] Transcript-in-confidence: Day 2, page 132 line 29 to page 133 line 40.

39. AB’s evidence was that she was initially contacted by Mr Turner with an enquiry in respect of providing services to VZLK. Her recollection was that Mr Turner described VZLK as ‘high needs’ and, in the context of whether VZLK would be able to achieve an erection or orgasm stated that she may need to bring for use some ‘assistive aids’.[192]

    [192] Transcript-in-confidence: Day 1, page 97 lines 24-27; lines 36-40.

1. On the basis of this evidence I therefore cannot be satisfied that VZLK does not have the same ability and capacity to use specific and tailored assistive technology, hands-free or otherwise, to achieve an erection and obtain sexual release. In this regard there was no evidence of any trial by VZLK of disability-specific assistive technology.[333] In this regard I do not consider the use of a vibrator by ZM on one occasion as a sufficient trial of disability specific assistive technology.

   [333] WRMF at [123].

2. I acknowledge the evidence of Dr Ariana and Ms Care-Unger that VZLK will require ‘assistance’ with the use of any assistive technology, including to set up, assist with use and clean up. However, in my view, such assistance would be required in any event and also with the services of a sex worker whereby VZLK would still require the assistance of two people with the transfer and positioning onto a bed prior to the service. He would also require further assistance after the services out of bed in order to attend to any personal hygiene such as showering and necessary clean up. I note the evidence of VZLK which was that in respect of his sessions with AB a support worker is required to assist with his set up prior to the service and his personal cares and hygiene after the service.[334]

   [334] Transcript-in-confidence: Day 1, page 78 lines 21-40.

3. In the absence of the investigation and trial of assistive technology specific to VZLK’s disability I am not satisfied that the assistance that VZLK requires to achieve sexual release is limited exclusively to the services provided by a specialised sex worker.

4. I am also not satisfied that the prospect of sexual release with the use of assistive technology, including hands free, is unlikely or impossible.

5. In this regard I am strongly persuaded by the evidence of Dr Ariana which was that he was certain that there are forms of hands-free assistive technologies available in Australia that would be suitable for VZLK and would enable him to achieve sexual release.[335]

   [335] See [107], Reasons for Decision.

6. I agree with Dr Ariana’s recommendation that VZLK should seek review by a sexologist for assessment of assistive technology suitable for use by him for the purposes of sexual release. In this regard a specialised occupational therapist may also be able to undertake such an assessment.

7. It follows that on the basis there has been no assessment of any assistive technology suitable (hands-free or otherwise) suitable for VZLK, no evidence was provided to the Tribunal in respect of the costs of such assistive technology. Notwithstanding, annexed to Dr Ariana’s report however was the manual[336] which commences with the following disclaimer:

   ‘The devices and ideas discussed in this manual are examples, and not specific recommendations, of products chosen to illustrate potential sexual options for persons with disabilities.’

   (Tribunal emphasis)

   [336] See [106], Reasons for Decision.

8. A further statement advises ‘The devices included are a sampling of what is available (in Canada) in 2009.’ The manual thereafter identifies multiple devices available for different physical disabilities. Some of these include disabilities of limited hand function and also no hand function. A price range of up to several hundred dollars is thereafter referred to.

9. AB’s evidence was that she charges a fee of $800.00 per hour and that in order for VZLK to achieve sexual release he requires a 90-minute sexual service session. This calculation equates to an annual cost of $24,000.00 for the provision of sexual services from a specialised sex worker in order for VZLK to achieve sexual release.

10. VZLK stated in his closing submissions that he seeks ‘20 sessions of a sex worker/therapist in the amount of $16,000 ($800 per session) or such further or other amount as the Tribunal considers appropriate in line with the evidence.’[337]

    [337] At [1(b)].

11. Having regard to the information contained in the manual, even in the context of inflation I am unable to be satisfied that such assistive technology once identified would equate anywhere near to an annual expense of $16,000.00 for VZLK.

12. There is therefore evidence that there exists an alternative support, in the form of hands-free assistive technology, available to VZLK for the provision of sexual release which is yet to be investigated and trialled.[338] In the absence of such investigation and trial I cannot be positively satisfied that VZLK’s only option for sexual release is a specialised sex worker.[339]

    [338] In contrast to WRMF at [52].

    [339] Applicant’s Closing Submissions at [94]; See also WRMF at [88].

13. I also accept the evidence of Dr Ariana that once suitable assistive technology is identified for VZLK he will be able to access this assistive technology regularly, even daily. Having regard to Rule 3.1(a) of the Supports Rules this aspect only strengthens my opinion that such assistive technology is a comparable support which would achieve the same outcome of sexual release, at a substantially lower cost, on a more regular basis than 20 times per year and therefore more likely to represent better value for money. On this basis Rule 3.1(a) of the Support Rules is not met.

    Rule 3.1(b) Supports Rules - Is there is evidence that the services of a specialised sex worker will substantially improve the life stage outcomes for, and be of long-term benefit to VZLK?

14. The Agency submits that there has been no improvement in VZLK’s mental health conditions and no decrease in his behaviours of concern since October 2022.[340]

    [340] Respondent’s Closing Submissions at [77(b)].

15. VZLK stated that the services of a sex worker helps to elevate his mood immensely ‘albeit for a short period’. Also that ‘Being able to touch a woman and feel intimacy is a very important part of my future well-being’.[341]

    [341] Document 18 at [34] and [43].

16. Mr Turner’s evidence was that VZLK’s behaviours of concern continue and is discussed in [83] – [86].

17. Dr Ariana’s evidence was that VZLK requires a comprehensive approach that addresses his emotional, psychological and social well-being to assist in improving mood and mental health. In this regard Dr Ariana identified that the following treatment, therapies and intervention may be beneficial:

    (i)psychotherapy/counselling such as cognitive behavioural therapy;

    (ii)family therapy and support groups;

    (iii)mindfulness and relaxation techniques;

    (iv)anger management;

    (v)physical rehabilitation and occupational therapy;

    (vi)medication management; and

    (vii)recreational and creative therapies.

18. Dr Ariana stated that there are unique circumstances where engaging a worker could be considered a potentially beneficial option to address emotional and psychological needs. Notwithstanding he stated that traditional mental health treatments and interventions have a strong evidence base in respect of improvement to mood and mental health. Dr Ariana also identified that:

    ‘Research on the direct and comprehensive impact of engaging in sexual activity with a sex worker on an individual's mood and mental health is limited and often controversial.’[342]

    [342] Document 28 at [7.98].

19. In terms of the benefits for VZLK as a result of engaging in sexual activity Dr Ariana identified following benefits, which he qualified as all being of a temporary nature:

    (i)a boost in his overall mood and well-being;

    (ii)a release of sexual tension and reduction in feelings of frustration;

    (iii)alleviation in feelings of loneliness; and

    (iv)reduction in agitation and frustration leading to improved interactions with caregivers and support workers.

20. Having regard to this evidence I am not satisfied that engagement with a sex worker will result in a substantially improved the life stage outcomes for VZLK and be of long-term benefit to him.

    Rule 3.1(c) Supports Rules - Is the funding of a sex worker likely to reduce the cost of the funding of supports for VZLK in the long term?

21. I note that in the context of engagement with a sex worker Ms Care-Unger’s opinion was that VZLK would also specifically require the following:

    (i)15 hours of consultation and regular review with VZLK’s occupational therapist and physiotherapist in order to support and educate the sex worker in relation to safety, transfers, management of fatigue levels and safe body positions; and

    (ii)20 hours of psychosexual therapy and/or sexuality-focussed occupational therapy for assistance with engaging with an appropriate sex worker, the continued exploration of equipment options within the context of a sex worker and the provision of sexuality and intimacy education.

22. In the context of engagement with a sex worker Dr Ariana referred to VZLK’s need for psychological review following engagement with a sex worker to identify any potential psychological impact and ensure VZLK’s well-being, together with subsequent pro-active periodical review to identify any emerging concerns.[343] Dr Ariana stated:

    ‘Long-term support, including physiological support and counselling, may be necessary to address any emotional or psychological challenges that may arise from his ongoing engagement in commercial sexual activity. The specific needs and requirements should be tailored to VZLK's evolving situation, ensuring a holistic and responsive approach to his mental and emotional well-being.’[344]

    [343] Document 29 at [3.15], [3.16] and [3.21].

    [344] Document 29 at [3.26].

23. Based on the evidence of Ms Care-Unger and Dr Ariana I am not satisfied for the purposes of Rule 3.1(c) of the Support Rules that the funding of a sex worker for VZLK will be likely to reduce the cost of the funding of supports for the participant in the long term.[345] I am in fact persuaded that the funding of a sex worker will most likely increase the cost of funding of supports for VZLK in the long-term. This is particularly so in the context of the inevitable decline in VZLK’s physical condition and the challenges faced in respect of seeking ongoing review in respect of transfers, body positioning and his general safety. 

    [345] Document 4 at [87].

24. On the basis of the above considerations I am not satisfied that the funding of a sex worker as a support for VZLK represents value for money for the purposes of subsection 34(1)(c) of the NDIS Act.

    Support coordination

25. The Agency submits that Mr Turner and Ms Kelly provide services to VZLK which are beyond the role and remit of support coordinators[346] including the use of support coordination funding for the hours spent assisting VZLK with preparations in relation to his AAT proceedings,[347] resolving accommodation and body corporate disputes and organising the access to services of sex workers for VZLK.

    [346] Transcript-in-confidence: Day 1, page 36 lines 10-37.

    [347] Section 200A, NDIS Act.

26. The Agency therefore contends that subsection 34(1)(c) and 34(1)(d) are not met.[348]

    [348] Document 4 at [155] – [160].

27. There are 3 levels of support coordination that can be included in a participant’s plan. These levels are explained as follows:

    Level 1 Support connection – This support is to build your ability to connect with informal, community and funded supports enabling you to get the most out of your plan and pursue your goals.

    Level 2 Support coordination – coordination of supports: This support will assist you to build the skills you need to understand and use your plan. A support coordinator will work with you to ensure a mix of supports are used to increase your capacity to maintain relationships, manage service delivery tasks, live more independently and be included in your community.

    Level 3 Specialist support coordination – This is a higher level of support coordination. It is for people whose situations are more complex and who need specialist support. A specialist Support Coordinator will assist you to manage challenges in your support environment and ensuring consistent delivery of service.[349]

    [349] See – What is support coordination?

28. VZLK is currently funded for 90 hours per year of level 2 support coordination. VZLK seeks an increase in this funding for the provision of 168 hours per year of support coordination. The increase sought equates to an additional 1.5 hours per week.

29. The Agency correctly identifies that the role of support coordinators is to help VZLK to:

    ·connect to NDIS and other supports;

    ·broker supports and services in line with a participant’s wishes and their plan budget;

    ·monitor plan budgets and support effectiveness; and

    ·build capacity and capability to understand their plan, navigate the NDIS and make their own decisions.[350]

    [350] Respondent’s Closing Submissions at [134]; See also coordinators.

30. VZLK contends that he has consistently required more support from his Support Coordinator than is being funded in his NDIS plan. VZLK stated that in the period of October 2022 to February 2023 and between February 2023 and August 2023 he required approximately 267.75 hours and 200.75 hours of Support Coordinator support respectively.[351] In respect of his current plan VZLK considered that his support coordinators have assisted him in the following ways:

    [351] Document 2 at [41] – [43].

    ·responding to unexpected hospitalisations which result in cancellations of current support workers and supports;

    ·negotiating directly with Qld Health for emergent situations, hospital admissions/discharges and transitioning back to home;

    ·addressing the risk of tenancy termination;

    ·assistance with body corporate issues relating to alleged damage caused by VZLK’s wheelchair in a registered SDA lift;

    ·engaging with a Specialist Disability Accommodation (SDA) provider in relation to the banning of a key support worker by a body corporate;

    ·engagement with an advocate to support VZLK in respect of a body corporate dispute;

    ·engagement with an advocate to assist VZLK in relation to a substantial rent increase on SDA residence;

    ·engagement with W regarding hospital admissions, supports and communication;

    ·sourcing temporary staff for shift coverage;

    ·managing termination of services of independent support providers on short notice;

    ·addressing issues with support staff and unreported absences from shifts;

    ·addressing issues with temporary and emergent support providers not being able to fill shifts on short-notice due to industry wide labour shortage;

    ·sourcing the replacement of deteriorating assistive technology;

    ·researching and sourcing suitable respite providers;

    ·assisting VZLK to maintain his relationship with his child and his family;

    ·engaging with the Public Trustee at the request of VZLK;

    ·facilitating stakeholder meetings with support staff regarding ongoing issues in respect of communication/shift notes/missing appointments/scheduling/shift coverage; and

    ·completing regular budget reviews as VZLK makes changes to his support providers and ensuring appropriate allocation of funding to allied health providers for therapies.[352]

    [352] Document 1 at [51].

31. Mr Turner gave evidence identifying the following matters where support coordination has been provided:

    ·assistance with the resolution of a body corporate dispute involving VZLK;

    ·searching for alternative accommodations for VZLK at various times;

    ·arranging independent support workers;

    ·managing the attrition of support workers;

    ·arranging holidays for VZLK;

    ·assistance during multiple hospitalisations;

    ·assistance with accessing a sex worker;

    ·engaging with the Public Trustee at VZLK’s request;

    ·managing and dealing with support worker issues in respect of VLKZ; and

    ·managing and dealing with VZLK’s issues in respect of support workers.[353]

    [353] Document 7 at [84] – [85].

32. The Agency submits that VZLK’s request for 168 hours is based on his historical usage of support coordination since 2022 and that this historical usage is not a reliable guide to VZLK’s current needs in relation to support coordination.[354]

    [354] Transcript-in-confidence: Day 1, page 36 line 41 to page 37 line 7.

33. The Agency further submits that funding for 100 hours per year for support coordination is a reasonable and necessary support for VZLK.[355] In support of these submissions the Agency relies on changes in VZLK’s circumstances since 2022[356] and refers to the following:

    ·in early 2024 VZLK relocated to a new SDA and his accommodation issues are now resolved;

    ·body corporate disputes in relation to VZLK’s previous accommodation are almost completely resolved and a disability advocate has taken over the QCAT case;

    ·body corporate disputes are no longer consuming Mr Turner’s time; and

    ·VZLK and Mr Turner gave evidence of Mr Turner’s time spent providing assistance in respect of these Tribunal proceedings. The Tribunal proceedings have now been completed this assistance is no longer required.

    [355] Respondent’s Closing Submissions at [117] – [118].

    [356] Respondent’s Closing Submissions at [120].

34. The Agency also submits that, to the extent VZLK’s behaviours of concern result in an increase in the level of support coordination service provided to him, it would be appropriate to address these behaviours by engaging a behavioural support practitioner to develop a behavioural support plan. In this regard the Agency submits that review and assessment by a behavioural support practitioner and the development a behavioural support plan is a reasonable and necessary support for VZLK and should be included in his statement of participant supports. I agree with this proposal.

35. The Agency also refers to Mr Turner’s evidence that currently one of VZLK’s support workers is engaged for 10 hours each week in non-face-to-face support in order to support the support worker team and coordinate the NDIS Stakeholders, and to follow up on incident reports.[357]

    [357] Transcript-in-confidence: Day 4, page 324 lines 44-47.

36. In closing submissions VZLK also made the following submission:

    ‘Mr Turner gave evidence that there was demonstrated use of more support coordination than provided in VZLK’s four plans since 4 January 2022. His requirements are certainly greater than the 100 hours acknowledged by the Agency. VZLK has had a high turnover of staff, complex needs, and difficulty communicating. It is also accepted that there is also a possibility that his hours may be less than his demonstrated use given his time in hospital and other matters raised in cross-examination with Mr Turner.

    It is submitted that the Tribunal ought to decide what is the appropriate level of support coordination between 100 and 168 hours having heard all of the evidence.’

37. I accept the Agency’s submission that many of the matters which have consumed the services of support coordinators have now been resolved. VZLK is now settled in suitable accommodation. He now has the services of an advocate to deal with any residual body corporate disputes in relation to his previous accommodation. His Tribunal proceedings have now been finalised. He does not require assistance to engage the services of a sex worker.

38. Notwithstanding I am satisfied that VZLK’s support coordination needs have altered in the past few years on account of his ever-diminishing ability to communicate and his deteriorating physical condition. Whilst VZLK has as his informal supports his child and W, the support which they provide are not of the nature of the supports which are provided by VZLK’s professional support coordinators.

39. The concession of 100 hours by Agency provides some recognition of VZLK’s deteriorating condition and increasing support coordination needs. As VZLK’s condition deteriorates, in particular his communication, face-to face interaction with his support coordinators will have greater complexity and take up more time. The introduction of a behaviour support practitioner and the development and implementation of a behaviour support plan will also be likely to add an extra component to the workload of support coordinators.

1. I consider it important that VZLK be provided with sufficient coordination funding in order for him to understand his plan including the implementation of a behaviour support plan and communicate his choices.

2. On this basis I consider that funding for additional support coordination (level 2) hours sufficient to facilitate VZLK’s engagement with a behavioural support practitioner and the implementation of a behavioural support plan is a reasonable and necessary support for VZLK and should be included in his statement of participant supports.

   Plan Management

3. The Agency seeks that the Tribunal make a finding that VZLK’s plan, which is currently managed by a plan manager, should be managed by the Agency on the basis of the following submissions:

   ·that the current plan manager, in continuing to manage VZLK’s plan, represents an ‘unacceptable risk’ to VZLK;

   ·that the Tribunal can be satisfied that the current plan manager’s management of VZLK’s NDIS funding represents an unreasonable risk to VZLK, pursuant to subsection 44(2) of the NDIS Act; and

   ·that the Tribunal can thereafter be satisfied that VZLK’s statement of participant supports must provide for the funding to be managed by the Agency, pursuant to subsection 43(4) of the NDIS Act.

4. VZLK objects to such a finding on the basis of procedural fairness and refers to the following:

   ·a change to the management of VZLK’s plan was only raised during the hearing;

   ·it was raised after VZLK had provided his evidence;

   ·VZLK was in hospital at the time of the fifth and final day of the hearing and was not able to give evidence;

   ·VZLK has therefore not been provided with any opportunity to provide evidence in respect of the issue of plan management;

   ·management of his plan by the Agency will have ramifications resulting in VZLK loosing choice and control over who provides services to support his needs. This is on the basis that as his current team of support workers are not registered NDIS providers, they would be unable to continue to support VZLK; and

   ·likewise on the basis that MyLife Mentoring is not a registered NDIS provider they too would be unable to continue with this support.[358]

   [358] Applicant’s Closing Submissions at [138].

5. The Agency raises as contentions the following:

   ·evidence only emerged during the first two days of this five-day hearing that VZLK had been using his NDIS funding and not his personal funds to pay for sessions with a sex worker;

   ·to date in excess of $8,520.00 of VZLK’s NDIS funding has been expended on sex worker services;

   ·at the time of the hearing VZLK was aware that his NDIS funding was being used for sex-worker services but did not know the amount per hour that was being charged for this service other than it was ‘expensive’;

   ·there is conflicting evidence as to whether the invoices for sex worker services were sent directly to Mr Turner or the plan manager;[359]

   ·on 15 July 2024 and prior to the third day of hearing the Agency wrote to VZLK’s legal representatives advising that it would be raising plan management by the Agency in its closing submissions; and

   ·that there has been no denial of procedural fairness on the basis of the following:

   (i)Prior to the hearing, plan management was not an issue for the Agency as it was unaware of the facts established in the evidence given during the first two days of the hearing;

   (ii)Both Mr Turner and VZLK were aware that NDIS funds were being used to fund sex-worker services for VZLK however did not disclose the same to the Agency and the Tribunal prior to the hearing;

   (iii)It ought to have been immediately apparent that the funding for sex worker services with NDIS funds would be likely to cause the Agency and the Tribunal itself significant consternation as to the risks associated with the management of VZLK’s plan, such that VZLK cannot now complain when those facts lead the Agency to raise the issue of plan management ‘mid-trial’; and

   (iv)Having raised plan management as an issue on 15 July 2024 VZLK’s legal representatives had ample time to address this issue by way of further statement or otherwise and prior to VZLK’s hospitalisation on or at the time of the final day of hearing. Alternatively it was open to VZLK’s legal representatives to seek an adjournment of the hearing on 7 August 2024 so as to be given an opportunity to provide evidence in relation to the plan management issue.[360]

   [359] Respondent’s Closing Submissions on Plan Management filed 2 September 2024 at [5].

   [360] Respondent’s Closing Submissions on Plan Management at [12].

6. Subsection 42(2) the NDIS Act provides that for the purposes of the statement of participant supports in a participant’s plan, in specifying the management of funding for supports as mentioned in subsection 33(2)(d) of the NDIS Act, the plan must specify that such funding is to be managed wholly or in part by:

   (i)the participant; or

   (ii)a registered plan management provider; or

   (iii)the agency; or

   (iv)the plan nominee.

7. Subsection 43(1) of the NDIS Act provides that a participant may make a request that the funding for supports under their plan be either be managed by the participant (self- managed); managed by a registered plan manager provider nominated by the participant (plan-managed); or managed by the Agency (NDIA-managed).

8. Subsection 43(8) of the NDIS Act provides that if a participant does not make a plan management request, the statement of participant supports must provide that the funding be wholly managed by the Agency.

9. Subsection 43(2) of the NDIS Act provides that a participant’s request pursuant to subsection 43(10) of the NDIS Act must be given effect except to the extent set out in subsection 43(3) to (6) of the NDIS Act.

10. Relevant to this review subsection 43(4) of the NDIS Act provides that, if a participant makes a plan management request for the funding under their plan to be plan-managed and subsection 44(2) of the NDIS Act applies in relation to the registered plan manager provider, the statement of participant supports must provide for the funding to be managed by the Agency to the extent covered by that subsection.

11. Section 44 of the NDIS Act sets out the circumstances in which certain persons must not manage funding and provides as follows:

    Circumstances in which persons must not manage funding

    Participant

    (1)  For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:

    (a)  the participant is an insolvent under administration; or

    (b)  the CEO is satisfied that the participant's management of the funding for supports under the plan to a particular extent would:

    (i)  present an unreasonable risk to the participant; or

    (ii)  permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.

    Registered plan management provider

    (2)  For the purposes of paragraph 43(4)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider's management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

12. Relevant to this review is consideration of subsection 44(2) of the NDIS Act and also the National Disability Insurance Scheme (Plan Management) Rules 2013 (‘the Plan Management Rules’).

13. Part 3 of the Plan Management Rules sets out criteria to which the CEO is to have regard in considering whether a participant managing the funding for supports under the plan would present an unreasonable risk to the participant.

14. No rules have been made in relation to the criteria that the CEO is to have regard to in determining whether a provider’s management of funds would present an unreasonable risk to the participant.

15. Part 3.8 of the Plan Management Rules however sets out the factors the CEO is to have regard to in determining if there is an unreasonable risk to adult participants if their funding is self-managed and provides as follows:

    Unreasonable risk in other cases
    Otherwise, the CEO is to have regard to the following:
    (a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
    (b) the vulnerability of the participant to:

    (i) physical, mental or financial harm; or
    (ii) exploitation; or
    (iii) undue influence;

    (c) the ability of the participant to make decisions;
    (d) the capacity of the participant to manage finances;
    (e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person;
    (f) whether, and the extent to which, any risks could be mitigated by:

    (i) the participant’s informal support network; or
    (ii) any safeguards or strategies the Agency could put in place through the participant’s plan.

16. The Agency submits that in the absence of any rules in respect of ‘plan managers’, the factors set out in part 3.8 of the Plan Management Rules provide some guidance as to the factors to be regarded in determining whether self-management of funding under a plan would present an unreasonable risk to a participant.

17. With regard to the matters set out in rule 3.8 I am satisfied that any risks to VZLK with respect to the management of the reasonable and necessary support in his statement of participant supports can be sufficiently mitigated with a provision prohibiting the expenditure of any of the funding therein being used to pay the service providers currently engaged to provide plan management for VZLK pursuant to subrule 3.8(e)(ii).[361]

    [361] See also Anassis and National Disability Insurance Agency [2022] AATA 622.

    Confidentiality Order

18. The Agency seeks in its closing submissions and raises for the first time an amendment to the confidentiality order made in respect of these proceedings for the purposes of its reporting duty to the NDIS Quality and Safeguards Commission.

19. In undertaking this review the Tribunal exercises its power in reviewing the decision under review pursuant to subsection 33(2) of the NDIS Act. In doing so the Tribunal’s role is to make the correct and preferrable decision in relation to the reasonable and necessary supports to be funded to VZLK in his statement of participant supports.

20. The Agency now seeks to include as part of the Tribunal’s review a determination under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).

21. I consider that any issue in respect of the confidentiality order, including a request for amendment, should be raised as a separate application to the Tribunal. This will allow any party potentially affected by an alteration to the confidentiality order to be afforded the opportunity to prepare and provide evidence and make submissions in accordance with the principles of procedural fairness.

22. Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

    (a)Within 28 days of this decision VZLK’s statement of participant supports specifies the following supports as reasonable and necessary:

    (i)funding for an Assistive Technology (AT) assessment by a suitably qualified occupational therapist assessor including a comprehensive assessment of VZLK’s remaining sensory abilities to explore suitable AT options to assist VZLK with his functional sexual impairment;

    (ii)funding for VZLK to engage with a behavioural support practitioner and develop a behavioural support plan;

    (iii)funding for 100 hours per year of support coordination (level 2); and

    (iv)funding for additional support coordination (level 2) hours sufficient to facilitate VZLK’s engagement with a behavioural support practitioner and the implementation of a behavioural support plan;

    (b)VZLK’s statement of participant supports includes a provision prohibiting the expenditure of any of the funding therein being used to pay the service providers currently engaged to provide plan management for VZLK;

    (c)The management of funding for reasonable and necessary supports is to remain the same as the management for those supports in VZLK’s current statement of participant supports;

    (d)The date by which the Agency must reassess VZLK’s plan is to be 12 months after the date on which the supports in (a) above are included in VZLK’s statement of participant supports;

    (e)VZLK’s current funding for support coordination is to be replaced by the supports specified at subparagraph (a)(iii)-(iv) above; and

    (f)And all other supports in VZLK’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified above are included in VZLK’s current statement of participant supports until the reassessment date.

I certify that the preceding 328 (three hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

....................................................

Associate

9 September 2024

329.    Dates of hearing:

330.    Date final submissions received:

331.    5 and 6 June; 18 and 19 July and 7 August 2024

332.    2 September 2024

333.    Counsel for the Applicant:

334.    Solicitor for the Applicant:

335.    Counsel for the Respondent:

336.    Mr Andrew Schriiffer (Pro Bono)

337.    Ms Rosslyn Aitchison, Cockburn Legal (Pro Bono)

338.    Ms Melissa Fisher

339.    Solicitor for the Respondent:

340.    Ms Rachel Hussey, Makinson d’Apice Lawyers

341.